GIFT   OF 
EVGENE  MEYERsJIR. 


CONSTITUTIONAL  HISTORY 

OF 

THE  STATE  OF  NEW  YORK 


m 


m 


Constitutional  History 


OF  THE 


State  of  New  York 


BY 

J.  HAMPDEN  DOUGHERTY 

Of  the  New  York  Bar 

AUTHOR  OF  "power  OF  THE  FEDERAL  JUDICIARY  OVER  LEGISLATION. 

"electoral  SYSTEM  OF  THE  UNITED  STATES," 

AND  OTHER  LEGAL  WORKS 


SECOND  EDITION 
Raised  and  Enlarged  by  the  Author 


NEW  YORK 
THE  NEALE  PUBLISHING  COMPANY 


Copyright,  1915,  by 
J.  HAMPDEN   DOUGHERTY 


TABLE   OF    CONTENTS 

PAGB 

Preface   to   Second   Edition 13 

Chapter  I 19 

Interest  in  Constitutional  History  Should  Be  General — Aim  of 
Present  Work — Sources  of  the  History — Contrast  Between 
Federal  Constitution  and  State  Constitution — Desirability  of 
Arousing  Interest  in  Constitutional  Questions 

Chapter  II 26 

Indebtedness  of  the  State  to  Roman  Law  and  to  Dutch  Begin- 
nings— The  Charter  Granted  by  the  States  General  to  the 
Dutch  West  India  Company — Commissions  Issued  to  the  Gov- 
ernors of  the  Colony — The  Charter  of  Freedoms  and  Exemp- 
tions— Tribulations  of  the  Colonists  Under  Dutch  Rule — Ex- 
tent of  the  Dutch  Qaims  in  North  America — Surrender  of 
New  Amsterdam  to  the  English — The  Duke's  Laws;  Gov- 
ernment Under  Andros  and  Dongan — The  Charter  of  Liberties 
and  Privileges — The  Colony  Under  Sloughter,  the  Governor 
Appointed  by  William  III — The  Charter  of  1691 — Type  of 
Government  Until  the  Outbreak  of  the  Revolution — The  Brit- 
ish Parliament  Had  No  Authority  Over  the  Colonies — The 
Constitution  of  the  Colony  of  New  York  at  the  Date  of  the 
Revolution  an  Outgrowth  of  Dutch  and  English  Customs  and 
Laws — Limited  Character  of  Suffrage 

Chapter  III 44 

Impulses  Towards  State  Government  Come  from  Continental 
Congress — Chaotic  Conditions  at  Outbreak  of  Revolution,  and 
Formation  of  Provincial  Governments  in  the  Colonies — The 
Third  Provincial  Congress  of  New  York — The  Fourth  Pro- 
vincial Congress,  or  First  Constitutional  Convention — The 
Work  of  the  Convention,  the  Council  of  Appointment,  the 
Council  of  Revision,  the  Judiciary,  Senate  and  Assembly — 
Other  Features  of  the  Constitution — Its  Simplicity — Early 
Government  in  the  Infant  State — New  York  Accepts  the 
Articles  of  Confederation — The  Action  of  the  State  Legisla- 

333745 


5  TABLE   OF   CONTENTS 

tAQB 

ture,  Ultra  Vires — Ratification  of  the  Federal  Constitution — 
Revision  of  the  Laws — New  York  Cedes  Her  Lands  in  the 
West — The  Practice  of  Law — Unsuccessful  Attempt  by  Burr 
to  Abolish  Slavery — Beginnings  of  Education 

Chapter  IV 66 

The  Council  of  Appointment — Hamilton's  View — Great  Body 
of  Office-holders,  Its  Appointees — Star-chamber  Power — Fed- 
eralist Party  First  to  Abuse  the  Power — Controversy  Between 
Governor  Clinton  and  Council  in  1794 — Controversy  Between 
Governor  Jay  and  Council  in  1800 — Constitutional  Convention 
of  1801— Its  Construction  of  Article  XXIII— Effects— Rise  of 
DeWitt  Clinton  to  Power — Abuses  of  the  Patronage  System — 
Hammond  and  the  Council — General  Desire  in  1820  for  Its 
Abolition 

Chapter  V 86 

Council  of  Revision — Percentage  of  Vetoed  Bills — Council  Ran 
Counter  to  Public  Sentiment  in  1812-1814 — Its  Vetoes  of  War 
Measures — Its  Veto  of  the  Bill  of  November  20,  1820,  for  a 
Constitutional  Convention — History  of  the  Movement  for  a 
Convention — Act  of  March  13,  1821 — Election  of  Delegates, 
and  Analysis  of  Vote 

Chapter  VI 100 

Convention  of  1821 — Personnel  of  the  Convention — Fall  of  the 
Council  of  Appointment  and  of  the  Council  of  Revision — Lo- 
cation of  the  Veto  Power — Debates  Over  Negro  Suffrage — 
Extension  of  White  Suffrage — Increase  of  Governor's  Powers 
— The  New  System  of  Appointments — Changes  in  the  Senate — 
Bank  Charters — Power  of  Amendment  Embodied  in  the  Con- 
stitution 

Chapter  VII 122 

Reorganization  of  the  Courts  in  the  Convention  of  182 1 — 
Radical  Element  Insists  Upon  Destruction  of  Existing  Su- 
preme Court — Report  of  the  Committee  on  the  Judiciary — 
Root's  Amendment  and  Proposed  Merger  of  Law  and  Equity — 
Rejection  of  Root  Program — The  Tompkins  Amendment,  Aimed 
Directly  at  Existing  Judges — General  Debate;  Root  Attacks, 
Van  Buren  Defends,  the  Courts — Tompkins'  Amendment  Re- 
jected— Select  Committee  Frames  a  New  Plan,  that  Is  Not 
Satisfactory — Carpenter's  Plan  for  the  Abolition  of  the  Exist- 


TABLE  OF   CONTENTS  7 

FAGB 

ing  Supreme  Court  and  the  Creation  of  New  Tribunals,  in 
Reality  a  Revival  of  Root's  Attack  Upon  the  Judges— Carpen- 
ter Plan  Carried — The  New  Tribunals — Early  Age  Limit 
Fixed  for  Retirement  of  Judges  by  First  and  Second  Con- 
stitutions— Kent — Brief  Review  of  Courts  Under  the  Second 
Constitution — The  Superior  Court  of  New  York  City — The 
Court  of  Common  Pleas,  New  York  County,  and  Its  History — 
Summary  of  Convention's  Work — Its  Address  to  the  People — 
Statutory  Revision  of  1830 — Treaty  Between  New  York  and 
New  Jersey 

Chapter   VIII 145 

Canals — Topography  of  New  York  State  and  Early  Efforts 
for  a  Canal  from  the  Hudson  to  the  Great  Lakes — Construc- 
tion of  Erie  Canal  Authorized — Lateral  Canals — State  Aid  to 
Railroads — Erie  Enlargement  Proposed — Internal  Improve- 
ments— Public  Debts — Stoppage  of  Work  Upon  the  Canals — 
Act  of  1842  and  Its  Policy — Attempt  at  Repeal — Governor 
Wright's  Veto  and  Its  Effect  Upon  His  Political  Career — 
Public  Demand  for  a  Constitutional  Convention  and  for  Con- 
stitutional Restrictions  Upon  State  Debts  and  Prohibition  of 
Loan  of  State  Credit  to  Private  Enterprises,  and  for  Judicial 
Reform — Passage  of  Law  Recommending  a  Constitutional 
Convention — ^Vote  for  a  Convention — The  Apportionment  of 
1846 

Chapter  IX 162 

Convention  Assembles  at  Albany — John  Tracy,  President — 
Personnel  of  Convention — Chief  Work  of  Convention — Provi- 
sions as  to  Canals,  Public  Revenue,  and  Public  Debts — Evils 
of  Special  Legislation — Provisions  as  to  Corporations — The 
Loco-Foco  Party  and  Its  Declaration  of  Principles — Effect 
Upon  Convention — Policy  of  Convention  Extreme  Decentrali- 
zation— Increase  in  Number  of  Senatorial  Districts — Abolition 
of  County  Representation  in  the  Assembly — Provision  for 
Arbitration  Tribunals — Creation  of  New  Supreme  Court  With 
Law  and  Equity  Powers — Adoption  of  Additional  Mode  of 
Amending  the  Constitution — Address  of  the  Convention  to 
the  People— Estimate  of  Its  Work— The  Canal  Bill  of  1851, 
Declared  Unconstitutional — Amendment  of  Canal  Provisions 
of  Constitution  in  1854 — Origin  and  Progress  of  Anti-rent 
Controversy  and  Limitations  Upon  Agricultural  Leases  in 
New  Constitution 


8  TABLE   OF   CONTENTS 

PAQB 

Chapter  X 182 

Fluctuations  in  Constitution  of  Judicial  Department — Perma- 
nent Tenure  in  the  Higher  Courts  Under  the  First  Constitu- 
tions— Uncertainty  of  Tenure  in  Colonial  Days — English  Ju- 
diciary Before  William  III — Removals  of  Inferior  Judges  by 
Council  of  Appointment — Defects  in  the  Judiciary  Under 
Constitution  of  1821 — Unwise  Solution  Attempted  in  1846 — 
Popular  Election  the  Creed  of  the  Time — Brief  Analysis  of 
Judicial  System  as  Reconstituted  in  1846 — Right  of  Judges 
to  Sit  in  Review  of  Their  Own  Decisions — New  York  Not  the 
First  State  to  Adopt  Elective  Judiciary — Reaction  Since  1846 
in  Various  States  in  Favor  of  Appointive  System  or  Longer 
Judicial  Terms — Treatment  of  the  Judiciary  by  the  Constitu- 
tional Convention  of  1867 — Judiciary  Committee  of  the  Con- 
vention— The  Majority  and  the  Minority  Report  to  the  Con- 
vention— Lengthening  of  Judicial  Tenure — Daly  Upon  the 
Convention  of  1846  and  Its  Adoption  of  the  Elective  System 
Without  Discussion — Evarts  Advocates  Tenure  During  Good 
Behavior — Votes  of  the  Convention  of  1867  Upon  This  Sub- 
ject— Questions  Affecting  the  Judiciary  Submitted  by  the  Con- 
vention to  the  People — Organization  of  New  Court  of  Ap- 
peals 

Chapter  XI 205 

Failure  of  the  Convention's  Work  Other  Than  Its  Judiciary 
Article — Causes  of  Failure,  Political  Passions  of  the  Time — 
Reports  of  Committee  on  Suffrage — Negro  Suffrage — Separate 
Submission  of  Question  Whether  Property  Qualifications  for 
Colored  Voters  Should  be  Retained  or  Abandoned — Vote  Upon 
the  Subject — Woman  Suffrage,  and  Speech  of  George  William 
Curtis — Minority  Representation — Reaction  from  Decentraliz- 
ing Spirit  of  1846 — Convention  Favors  Larger  Senatorial  Dis- 
tricts and  County  Representation  in  the  Assembly — Debate 
Upon  the  Report  of  the  Committee  on  State  Affairs — Argu- 
ments for  Establishment  of  Cabinet  of  State  Officers  and  the 
Nomination  of  Such  Officers  by  the  Governor — Governor's 
Power  Over  Bills  After  Close  of  Session — Extension  of  Veto 
Pow^r — Municipal  Government — Convention's  Report  Drafted 
by  Judge  Folger — Adjournment  of  the  Sessions  of  the  Conven- 
tion, and  Effect — Vote  Upon  Convention's  Work 

Chapter  XII 224 

Governor  Hoffman  Proposes  a  Constitutional  Commission  in 
Lieu  of  a  New  Convention — His  Suggestions  for  Constitutional 


TABLE   OF   CONTENTS  '  9 

PAQB 

Reform — Chapter  884,  Laws  of  1872,  Authorizing  the  Governor 
to  Appoint  a  Commission — Personnel  of  the  Commission — Re- 
semblances Between  Its  Suggestions  and  the  Constitution 
Drafted  in  1867 — Enlargement  of  the  Sphere  of  Ineligibility  to 
the  Legislature — Prohibition  of  Local  and  Special  Legislation — 
The  Nature  of  Private  and  Local  Laws  to  Be  Fairly  Specified 
in  Titles — Prohibition  Against  Audit  or  Allowance  of  Private 
Claims  Against  the  State — Increase  of  Legislative  Powers  of 
Boards  of  Supervisors — Suggestion  as  to  Private  Bills  Not 
Approved  by  the  Legislature — History  of  Private  Legislation  in 
Great  Britain — Proposed  Re-creation  of  a  Council  of  Revision 
— Enlargement  of  Governor's  Veto  Power — Thirty-Day  Bills — 
Proposed  Increase  of  Governor's  Term — Proposed  Appoint- 
ment of  State  Officers — Sale  of  Non-paying  Lateral  Canals — 
Provisions  as  to  Charters  of  Savings  Banks — Constitutional 
Limitations  Upon  Power  of  Cities  and  Counties  to  Incur  In- 
debtedness— Enormous  Extent  of  Such  Indebtedness  in  1872 — 
Prohibition  of  City  or  County  Indebtedness  in  Aid  of  Private 
Enterprise — Commission  Proposes  Two  New  Articles — The 
Bribery  Article — Difference  Between  the  Plan  of  the  Commis- 
sion and  That  of  the  Convention  of  1867 — The  Municipal 
Article — Later  Restraints  Upon  Local  Expenditure— Adoption 
of  Many  Suggestions  of  the  Commission  by  the  Legislature 
and  the  People — Commission  an  Innovation  in  the  State's 
History 

Chapter    XIII 246 

New  York  and  Albany  Only  Cities  Mentioned  in  Constitution 
of  1777— Freedom  of  the  City— Cities  of  the  State  Few  in 
Number  in  1846 — Home  Rule  Instinct  as  Old  as  Civilization — 
Early  American  Cities  Like  English  Prototypes— New  York 
City  Charters,  Dutch  and  English— Dongan  Charter— City 
Charter  of  1830  and  Its  Defects— Charter  of  1849— Legislative 
Usurpation  of  City  Government  in  1857,  Reason  Therefor,  and 
Results— Tweed  Charter  of  1870— Charter  of  1873— Attention 
First  Focused  on  City  Maladministration  After  Civil  War — 
Treatment  of  City  Problems  by  Convention  of  1867,  and  Com- 
mission of  1872 

Chapter    XIV 262 

Tilden  Commission — Its  Advocacy  of  Limited  Suffrage  in 
Cities— Summary   of   Its    Plan   for   Improving   City   Govern- 


10  TABLE  OP  CONTENTS 

FAaa 
ment — Failure  in  Legislature — Convention  of  1894  Divorced 
City  from  State  and  National  Elections — Its  New  Municipal 
Article — General  and  Special  City  Laws — Recent  Enactments 
Enlarging  Powers  of  Cities — Dual  Functions  of  the  City — Con- 
cluding Considerations— Outlook  for  Future  Hopeful 

Chapter  XV 279 

Effect  of  the  Construction  of  Railroads  Upon  Canal  Revenues 
— Formation  of  the  New  York  Central  System — The  Erie 
Railroad — Increase  in  Tonnage  Carried  by  Rail — Influence  of 
the  Grain  Carrying  Trade  Upon  Railroad  Rates — Assembly 
Committee  to  Investigate  Railroad  Abuses — Its  Report — In- 
justice of  Secret  and  Special  Rates — Recommendations  of  the 
Committee — Passage  of  Constitutional  Amendments  Affect- 
ing Canals — Improvement  of  Canals  and  Inland  Waterways — 
Governor  Roosevelt's  Committee  on  the  State  Canal  Policy 
and  Its  Report — Provision  for  the  $101,000,000  Barge  Canal 

Chapter    XVI 296 

Taxation — Its  Purposes — Character  of  Taxes — Provisions  of 
State  Constitutions  Referring  to  Taxation— Lotteries  Forbid- 
den by  First  Constitution — Early  Methods  of  Taxation — The 
General  Property  Tax — Escape  of  Personalty  from  Assessment 
—Tendencies  in  Modern  Taxation— Inefficacy  of  the  Personal 
Tax — Indirect  Taxation  Superseding  Direct  Taxation  for  State 
Purposes — Differentiation  Between  Sources  of  State  and  Local 
Revenue— State  Taxes  on  Corporations — Transfer  Taxes — 
Liquor  Tax — Stock  Transfer  Tax — Taxation  of  Special  Fran- 
chises—Secured Debts  Tax— Sting  of  Taxation  Is  Wasteful- 
ness—Early State  Taxes— State  Debts— Federal  Direct  Tax 
of  1861— Recent  Constitutional  Amendments  Regarding  Debts 
— Highway  Improvements 

Chapter    XVII •        •        .322 

Contrasts  Between  the  Earlier  Courts  of  the  State  and  Present 
Tribunals — The  Constitutional  Commission  of  1890 — Treat- 
ment of  the  Judiciary  by  the  Convention  of  1894 — The  Court 
of  Appeals — The  Appellate  Divisions — Abolition  of  the  Su- 
perior Courts— Surrogates'  Courts— Judiciary  Pensions— Re- 
cent Constitutional  Amendments  Affecting  the  Judiciary— 
The  Work  of  the  Courts— Their  Power  to  Declare  Legislation 
Yoid — Courts  and   Public   Opinion — Independence   of   Courts 


TABLE  OF  CONTENTS  in 

PAGB 

Vital — Futile  and  Unwise  Attempts  in  Congress  to  Bring 
Federal  Judiciary  Under  Popular  Control 

Chapter  XVIII 344 

Vote  in  1886  for  a  Convention — Differences  Between  Legisla- 
ture and  Governor — Legislation  Providing  for  Convention — 
Election  of  Delegates  in  Fall  of  1893 — Outline  of  Work  of  the 
Convention  Other  Than  Upon  the  Judiciary  Article,  and  in 
Relation  to  Canals — Treatment  of  Article  XIV — Reapportion- 
ment in  Senate  and  Assembly — Convention's  Report — Submis- 
sion of  Its  Work  to  the  People — Later  Constitutional  Changes 
— Relative  Value  of  Methods  of  Amendment 

Chapter    XIX 363 

Workmen's  Compensation  —  The  Wainwright  Law  —  "Ives" 
Case  —  The  Workmen's  Compensation  Amendment  —  Recent 
Important  Change  in  the  Federal  Law — The  Sulzer  Impeach- 
ment— Impeachment  Trial  and  Constitutional  Questions 
Raised  Thereat — The  Judgment  of  Removal — Questions  for  the 
Coming  Constitutional  Convention — Act  of  the  Legislature 
Recommending  the  Calling  of  a  Convention — The  Vote — Tax- 
payer's Action  to  Enjoin  Assembling  of  Convention — The  De- 
cision of  the  Court  of  Appeals — Election  of  Delegates 

Chapter  XX 380 

Brief  Summary  of  Constitutional  Changes  Since  Organization 
of  State — Checks  Upon  Legislative  Action  Imply  No  Distrust 
of  Democracy — Initiative,  Referendum,  Recall;  Extent  of 
Their  Employment  in*  New  York — No  Real  Danger  of  En- 
croachment by  the  Nation  Upon  the  Province  of  the  State — 
Greatness  of  the  State  Depends  Upon  Its  Own  People— Uni- 
versal Suffrage— Its  Value  In  the  History  of  State  and  Nation 
— Assured  Future  of  Democracy — Conclusion 

Index 395 


PREFACE   TO   SECOND   EDITION 

The  apathy  which  seemed  to  prevail  when  the  question 
of  calling  a  constitutional  convention  was  submitted  to 
the  people  of  this  State  in  the  fall  of  191 3  has  been  suc- 
ceeded by  widespread  interest  in  its  proceedings  and  by  great 
activity  among  civic  bodies  interested  in  various  reform 
projects.  Associations  of  the  bar  seem  keenly  awake  to  the 
desirability  of  urging  changes  in  the  judiciary  article.  Ad- 
vocates of  local  home  rule  will  seek  a  constitutional  amend- 
ment granting  municipalities  adequate  powers  of  local  self- 
government.  The  recent  Workmen's  Compensation  Amend- 
ment will  come  under  scrutiny.  Woman  suffrage  will  have 
its  champions.  The  short  ballot  will  strongly  be  urged.  Bi- 
ennial legislative  sessions  will  probably  be  advocated,  as 
also  four-year  terms  for  senators  and  the  governor.  The 
convention  may  be  asked  to  limit  legislative  power  over 
franchises.  Labor  will  doubtless  have  claims  to  present. 
Changes  will  probably  be  sought  in  the  canal  provisions  of 
the  constitution,  better  conservation  of  the  water  power 
of  the  State,  and  of  its  forests,  demanded.  The  proceed- 
ings of  the  convention  will  be  followed  with  interest  all 
over  the  country.  Its  work,  if  ratified,  may  have  profound 
effect  upon  the  destinies  of  the  State,  and  influence  the 
fortunes  of  other  States  to  an  extent  that  can  hardly 
be  measured. 

Whether  the  action  of  the  convention  be  conservative 
or  radical,  the  State  cannot  divorce  itself  from  its  past. 
The  past  should  be  understood  by  those  who  would  inter- 
pret and  build  for  the  future.  Sociological  phenomena  are 
as  related  as  other  physical  phenomena.     Nature's  aberra- 

13 


14  PREFACE   TO    SECOND   EDITION 

tions,  its  cataclysms,  could  be  foretold  if  the  past  were 
completely  known.  Human  society  is  subject  to  like  inex- 
orable laws.  The  most  revolutionary  constitutions,  as  in 
France  after  the  first  Revolution,  were  built  upon  accepted 
foundations.  Constitutional  history  is  an  evolution.  Hence 
the  necessity  to  understand  the  past.  Ideas  supposedly  new, 
seem  to  have  been  repeatedly  and  well  discussed  in  former 
conventions.  Of  the  subjects  now  in  the  popular  mind  it 
will,  I  think,  be  found  that  few  have  not  been  considered 
by  previous  conventions.  The  short  ballot  is  now  ardently 
advocated.  The  expression  is  modern,  the  idea  old — as  is 
revealed  in  the  discussions  in  the  convention  of  1867  and 
the  commission  of  1872.  The  need  for  some  reform  which 
shall  prevent  constitutional  changes  at  the  behest  of  slender 
minorities,  now  strongly  felt,  has  long  been  patent.  Judi- 
cial recall  is  an  old  fallacy  masquerading  under  a  new  name. 
Although  since  the  publication  of  the  first  edition  of  this 
book,  the  doctrine  of  judicial  recall  and  of  the  recall  of 
judicial  decisions  has  been  the  subject  of  profound  analysis 
and  exhaustive  discussion,  the  author  has  preferred  to  leave 
untouched  what  he  originally  wrote  upon  this  theme. 

Unless  a  constitution  is  to  be  radically  altered  it  is  the 
author's  opinion  that  as  between  a  convention  and  such  a 
commission  as  was  appointed  in  1872,  the  latter  furnishes 
a  more  satisfactory  method  of  revision.  The  coming  con- 
vention will  consist  of  one  hundred  and  sixty-eight  dele- 
gates; the  commission  of  1872  had  thirty-two  members,  all 
specially  equipped  to  deal  with  constitutional  problems. 
From  a  small  commission  work  of  a  higher  quality  usually 
emanates.  Not  only  matter  but  also  phraseology  receives 
more  careful  consideration.  Moreover,  the  work  of  a  con- 
vention is  at  once  submitted  to  voters ;  whereas  a  commis- 
sion reports  to  the  legislature,  and  two  altogether  distinct 
legislatures  decide  whether  they  approve  the  proposed 
amendments  before  these  can  be  submitted.  In  1869,  it  is 
true  that  besides  the  question  of  approving  or  rejecting  the 


PREFACE   TO    SECOND    EDITION  15 

constitution  framed  by  the  convention  of  1867,  three  sep- 
arate questions  were  submitted.  In  1894  two  questions 
were  submitted  in  addition  to  the  question  whether  the  new 
constitution  should  be  ratified.  It  is,  however,  imprac- 
ticable for  voters  to  pass  upon  a  new  constitution  section 
by  section — it  has  to  be  considered  as  a  whole.  The  pres- 
ence of  one  unpopular  change  may  endanger  the  whole 
work.  Or  some  unwise  provision  may  be  carried  by  a 
powerful  demand  for  the  rest.  With  the  report  of  a  com- 
mission nothing  of  this  kind  is  likely  to  happen,  for  its 
report  is  considered  section  by  section  in  the  legislature, 
and  each  separate  amendment,  if  approved  by  two  legisla- 
tures, is  separately  submitted  to  the  people. 

Had  no  convention  been  favored  at  the  special  election 
last  April,  resort  could  have  been  had  to  the  method  of 
amendment  first  provided  in  1822.  This  has  become  the 
vehicle  for  numerous  amendments,  some  of  profound 
importance.  For  example,  eleven  distinct  amendments 
were  submitted  November  3,  1874.  This  is  the  largest  num- 
ber submitted  in  any  one  year.  In  1905,  seven  amendments 
were  voted  upon;  in  1909,  four.  The  relative  smallness 
of  the  vote  upon  such  amendments — in  fact,  of  the  vote 
upon  the  work  of  a  constitutional  convention — is  the  sub- 
ject of  comment  in  subsequent  pages.  Some  remedy  should 
be  sought  by  the  coming  convention. 

Although  the  people  have  voted  that  a  convention  shall 
be  held  **to  revise  the  constitution  and  amend  the  same,"  it 
does  not  follow  that  the  convention  should  report  in  favor 
of  any  change.  It  may  make  none.  Such  a  conclusion, 
however,  is  extremely  unlikely.  Nor  does  to  "revise"  and 
"amend"  forbid  complete  remodeling — building  from  an 
altogether  different  basis.  The  powers  of  the  convention 
are  imperial,  save  only  that  no  form  of  government  not 
republican  may  be  devised.  It  is  extremely  improbable  that 
the  convention  will  attempt  to  raze  the  present  structure 
and  build  anew  from  the  foundation. 


i6  PREFACE   TO    SECOND   EDITION 

Every  convention  has  contained  a  large  number  of  law- 
yers. The  coming  one  will  not  be  an  exception.  In  some 
quarters  there  may  be  a  disposition  to  look  askance  at  the 
lawyer,  yet  he  is  a  necessary  factor  in  every  constitutional 
convention.  If  the  reproach  that  the  bar  is  a  mercenary 
body  with  no  larger  horizon  than  fees  or  the  narrow  special 
interests  of  its  clients  were  ever  merited,  it  is  not  so  today. 
The  work  of  the  profession  all  over  the  State  is  of  the 
most  altruistic  sort.  The  interest  of  the  lawyer  in  consti- 
tutional government  is  of  the  philosophic  kind.  He  lives 
in  the  atmosphere  of  basic  principles  and  is  ready  to 
expound  them  in  the  public  interest.  As  President  Wilson 
has  said,  the  State  "never  needed  lawyers  who  are  states- 
men more  than  it  needs  them  now  .  .  .  lawyers  who  can 
think  in  the  terms  of  society  itself,"  and  are  not  "mere 
cogs  in  a  machine  which  has  men  for  its  parts."  Every 
one  familiar  with  the  activities  of  lawyers  in  behalf  of 
sound  government  must  admit  that  at  present  they  are 
responding  to  the  highest  claims  of  society  upon  them. 

Whether  or  not  the  constitution  be  revised  in  its  princi- 
ples and  ideas,  it  might  well  be  improved  in  phrase  and 
greatly  abridged.  Why  should  not  the  convention  challenge 
every  word  to  explain  its  function,  expunge  every  unneces- 
sary expression  ?  The  constitution  could  be  shortened  with- 
out sacrifice  of  one  idea.  Some  provisions  have  none  of  the 
attributes  of  a  constitution;  they  are  altogether  statutory. 
Furthermore,  every  qualifying  phrase  is  a  restriction  of 
power.  Every  limitation  upon  the  two  methods  of  amend- 
ing the  constitution  is  an  obstacle  in  the  path  of  freedom 
of  amendment.  Such  qualifications  have  led  astute  lawyers 
to  insist  that  some  constitutional  powers  have  not  been 
constitutionally  exercised.  They  would  construe  a  hair- 
breadth departure  from  a  specifically  defined  plan  as  an 
unconstitutional  procedure,  whereas  a  broader  theory 
should  prevail.  The  reserve  power  of  alteration  and 
amendment  should  not  be  hedged   about  by  meticulous 


PREFACE   TO    SECOND    EDITION  17 

restrictions  that  hinder  rather  than  aid  freedom  of  change. 
The  purpose  behind  the  power  of  amendment  should  ever  be 
kept  in  mind — to  enable  the  voters  of  the  State  to  decide 
whether  they  wish  to  alter  their  constitution  basically  or 
otherwise,  and  to  elect  responsible  representatives  or  dele- 
gates to  do  for  them  that  which,  because  of  their  great 
numbers,  they  cannot  do  for  themselves. 
New  York,  February  12,  1^15. 


Constitutional  History  of  the 
State  of  New  York 


CHAPTER   I 

INTEREST  IN  CONSTITUTIONAL  HISTORY  SHOULD  BE  GENERAL 

^AIM  OF  PRESENT  WORK SOURCES  OF  THE  HISTORY 

CONTRAST  BETWEEN  FEDERAL  CONSTITUTION  AND  STATE 

CONSTITUTION DESIRABILITY     OF    AROUSING    INTEREST 

IN  CONSTITUTIONAL  QUESTIONS. 

The  history  of  constitutional  development  in  New  York 
should  interest  the  lawyer,  the  statesman,  the  student  and  the 
man  of  affairs.  Much  has  been  admirably  written  to  show 
the  extent  of  the  debt  which  the  State  owes  to  its  Nether- 
land  beginnings  and  the  influence  of  a  long  English  colonial 
experience  in  shaping  the  main  outlines  of  the  first  State 
government  and  in  moulding  institutions  which  still  persist 
and  will  form  enduring  features  of  State  polity.  After  the 
elaborate,  painstaking,  and  admirable  work  of  Mr.  Charles 
Z.  Lincoln  upon  the  constitutional  history  of  New  York, 
and  numerous  essays  and  studies  concerning  the  relations  of 
the  State  government  to  the  colonial  governments  by  Mr. 
Robert  Ludlow  Fowler  and  others,  it  might  be  thought  that 
no  need  exists  for  a  volume  seemingly  covering  part  of  the 
same  ground.  No  attempt  is  made  in  these  pages  to  rival 
the  contributions  of  these  authors  to  the  constitutional  his- 
tory of  the  State,  or  to  write  its  political  history — which 
Mr.  De  Alva  Stanwood  Alexander  has  recently  so  well 
done.     The  aim,  far  less  ambitious,  is,  by  presenting  in  a 


20  CONSTITUTIONAL    HISTORY 

single  volume  a  series  of  pictures  of  constitutional  evolu- 
tion, to  arouse  an  interest  which  longer  and  more  technical 
works,  hardly  popular  in  character,  have  perhaps  failed  to 
create. 

The  annals  of  colonial  times  have  been  explored  by  his- 
torians with  more  industry  and  fullness  than  have  later  rec- 
ords. The  effort  of  the  present  writer  has  been  briefly  to 
sketch  the  colonial  epoch  as  a  background  for  the  story  since 
the  Revolution,  and  to  describe  in  short  chapters  the  events 
which  have  led  to  the  successive  constitutions  of  the  State, 
and  the  constitutions  themselves.  This  involves  study  of 
the  work  of  the  convention  of  1777,  which  framed  the 
State's  first  written  constitution,  and  of  the  convention  of 
1801,  whose  chief  task  was  judicial,  that  is,  the  interpreta- 
tion of  the  meaning  of  Article  XXIII  of  the  first  constitu- 
tion, concerning  the  power  of  appointment  to  office.  The 
remarkable  part  played  by  both  the  council  of  appointment 
and  the  council  of  revision  has  to  be  understood  in  order 
that  the  demand  for  the  call  of  the  convention  of  1821  may 
be  comprehended. 

Paradoxical  as  it  may  seem,  since  it  was  liable  to  change 
of  membership  every  year,  the  council  of  appointment  was 
the  longest-lived  and  most  powerful  political  agency  ever 
created  in  this  State.  The  paternity  of  the  Albany  regency 
is  easily  ascribable  to  it.  The  council  of  revision  without 
even  writing  a  veto, — by  a  mere  intimation  from  some  of 
its  members  that  it  was  averse, — could  block  the  passage 
of  any  bill  through  one  or  both  of  the  houses,  and  as  judges 
always  formed  a  majority  of  the  council,  they  were  given 
a  power  over  legislation  that  often  prevented  the  enactment 
of  measures  which  they  did  not  approve.  With  the  excep- 
tion of  New  York  City,  the  older  parts  of  the  State  were 
aristocratic  communities,  largely  dominated  by  a  few  landed 
families ;  the  newer  sections  were  settled  by  New  England- 
ers,  to  whose  coming  into  the  State  it  was  in  great  measure 
due  that  the  convention  of  1821  was  called.     The  story 


STATE   OF   NEW   YORK  21 

therefore  requires  consideration  of  the  two  councils  and  of 
the  movement  of  population  from  New  England  into  New 
York;  of  the  work  of  the  constitutional  convention  of  1821, 
and  of  the  new  or  second  constitution  which  was  the  out- 
come of  its  proceedings. 

Canals  have  had  potent  influence  in  the  history  of  the 
State.  The  nature  of  this  influence  and  the  connection  of 
the  canals  with  constitutional  changes  must  be  perceived  if 
the  history  is  to  be  understood.  Since  the  State  has  re- 
cently embarked  upon  a  policy  of  canal  improvement  in- 
volving colossal  expenditure,  the  earlier  canal  history  may 
profitably  be  studied.  In  1842  it  was  resolved  to  curtail 
the  power  of  the  legislature  to  incur  debt.  This  decision 
and  the  reaction  against  the  tendency  to  involve  the  govern- 
ment in  private  business  led  to  the  convention  of  1846. 
The  work  of  that  convention  and  the  constitution  reported 
by  it,  the  third  constitution  of  the  State,  have  been  dis- 
cussed in  this  book.  Whatever  may  be  the  common  impres- 
sion, the  most  important  part  of  the  labor  of  that  conven- 
tion dealt  with  the  subject  of  public  debts. 

The  next  succeeding  constitutional  convention  was  that 
of  1867,  all  of  whose  work  except  the  judiciary  article  was 
rejected  at  the  polls.  Then  followed  the  constitutional  com- 
mission of  1872,  which  took  up  a  large  part  of  the  unac- 
cepted effort  of  the  convention  of  1867,  revised  it,  and  pre- 
sented it  to  the  State  legislature  in  such  form  that  much  of 
it  was  eventually  incorporated  in  the  constitution.  To  the 
able  and  thoughtful  men  in  the  convention  of  1867  it  must 
have  seemed  lamentable  that  their  labors  were  not  appreci- 
ated. The  valuable  ideas  which  the  convention  formulated 
first  passed  through  the  crucible  of  public  discussion  and 
afterwards  were  debated  in  the  commission  of  1872.  The 
good  work  of  the  convention  was  not  lost ;  on  the  contrary, 
it  was  improved,  and,  fortunately  for  the  people,  some  no- 
tions much  in  vogue  at  the  time  were  never  submitted  by 
the  legislature  for  popular  vote,  and  were  happily  kept  out 


22  CONSTITUTIONAL   HISTORY 

of  the  organic  law.  The  lesson  which  that  period  should 
teach  is  that  proposed  constitutional  changes  need  thor- 
ough consideration  before  their  submission  to  the  people. 

In  1890  a  constitutional  commission  was  summoned  into 
being  to  revise  the  judiciary  article.  The  article  framed  by- 
it  was  not  approved  by  the  legislature,  and  was  therefore 
never  submitted  to  the  people.  A  new  convention  accord- 
ingly became  necessary,  particularly  as  the  constitution  of 
1846  had  provided  for  a  possible  convention  every  twenty 
years.  The  revision  of  the  judiciary  article  by  the  com- 
mission of  1890  was  utilized  by  the  convention  of  1894,  and 
is  the  basis  of  the  judiciary  article  reported  by  that  con- 
vention. 

The  work  of  the  convention  assembled  in  1894  has  also 
been  considered.  The  two  methods  of  obtaining  amend- 
ments to  the  State  organic  law  have  been  discussed,  as 
have  also  their  origin  and  the  extent  of  their  use.  The  city 
problem  is  so  important  and  so  related  to  constitutional 
matters  that  two  chapters  have  been  given  to  city  govern- 
ment; and  the  subject  of  taxation  has  been  deemed  of  suffi- 
cient moment  to  be  made  the  theme  of  one  chapter. 

There  is  a  great  wealth  of  material  bearing  upon  the 
constitutional  history  of  the  State,  material  so  overwhelm- 
ing in  volume  as  to  be  almost  beyond  mastery.  Jabez  D. 
Hammond's  Political  History  of  New  York  is  a  veritable 
treasure  house.  But  Hammond's  history,  including  his 
''Life  of  Silas  Wright,"  brings  the  study  down  only  to 
1846,  and  no  treatise  of  equal  merit — in  fact,  no  single 
work — covers  the  interval  between  that  time  and  the  pres- 
ent. It  would  be  useless  to  compile  a  bibliography  of  the 
numerous  authorities  which  have  been  examined  in  the 
writing  of  this  book.  Recourse  has  repeatedly  been  had  to 
the  statutes,  the  messages  of  the  governors,  which  have  been 
put  by  Mr.  Lincoln  into  easily  available  form,  and  the 
records  of  the  debates  of  the  several  conventions,  commenc- 
ing with  those  of  the  convention  of  1821.     The  more  the 


STATE   OF   NEW   YORK  23 

volumes  of  convention  debates  are  examined,  the  more  they 
will  be  found  to  yield,  especially  the  volume  dealing  with 
the  convention  of  1821.  The  actual  speakers  in  the  conven- 
tion were  relatively  few  in  number,  but  the  extent  to  which 
in  the  exposition  of  their  ideas  they  drew  upon  the  experi- 
ence of  the  nation  and  of  other  States  is  surprising. 

Perhaps  indications  of  a  secret  fondness  for  the  work 
of  that  convention  may  occasionally  be  detectied  in  this 
book;  it  is  the  author's  conviction  that  there  never  assem- 
bled in  this  State  a  convention  containing  talent  greater  or 
better  fitted  to  deal  with  its  particular  task.  By  way  of 
contrast  the  work  of  the  convention  of  1846,  apart  from 
its  treatment  of  financial  questions,  is  correspondingly  dis- 
appointing. Too  many  of  its  members  were  inclined  to 
loquacity.  It  spent  parts  of  twenty-three  days  in  discussing 
the  question  whether  to  be  eligible  for  the  governorship  a 
person  should  have  been  a  resident  in  the  State  for  a  spe- 
cific length  of  time. 

That  constitutional  changes  have  not  always  been  wisely 
made  would  seem  clear  from  the  fact  that  things  which  have 
been  done  have,  again  and  again,  been  undone.  Continuity 
of  policy  seems  at  times  to  be  lacking,  yet  no  valid  reason 
can  be  found  why  such  continuity  should  not  have  existed. 
Our  history  conveys  the  impression  that  constitution  f ram- 
ers  have  often  been  feeling  their  way  to  results  without  clear 
conviction  how  these  were  to  be  attained.  Study  of  the 
constitutional  history  of  the  State  awakens  question  whether 
we  have  not  reached  a  stage  where  the  fundamental  law  is 
too  readily  changed,  the  disadvantage  of  which  is  that  pop- 
ular whim  may  find  its  way  into  the  constitution.  Although 
the  constitution  should  always  be  quickly  responsive  to 
sound  popular  opinion,  it  should  nevertheless  not  yield  to 
temporary  caprice. 

Chief  Justice  Spencer  was  not  far  amiss  when  in  182 1 
he  declared  that  prohibitions  upon  lotteries  did  not  belong 
in  the  organic  law.    Laws  aimed  at  frailties  in  human  na- 


24  CONSTITUTIONAL    HISTORY 

ture  have  no  place  in  constitutions ;  prohibitions  upon  gam- 
bling, horse  racing,  &c.,  do  not  belong  there,  and  Mr. 
Choate  was  correct  in  opposing  the  introduction  into  the 
constitution  of  1894  of  a  declaration  that  the  right  of  action 
to  recover  damages  for  injuries  resulting  in  death  should 
never  be  abrogated.  The  modern  tendency  is  to  over-load 
the  constitution  with  both  matter  and  phrase. 

Two  contrasts  are  to  be  observed  between  the  federal 
constitution  and  the  constitution  of  this  State.  The  first  is 
that  the  federal  organic  law  has  become  almost  unchange- 
able by  the  methods  of  amendment  for  which  it  makes  pro- 
vision. This  may  still  be  asserted,  despite  the  recent  adop- 
tion of  two  amendments.  The  mere  increase  in  the  number 
of  States  makes  for  immobility.  All  amendments  down  to 
and  including  the  twelfth  amendment  were  made  before 
the  close  of  the  year  1804.  Three  amendments  were  the 
result  of  the  Civil  War.  It  is  by  interpretation  and  judicial 
exposition  that  the  federal  constitution  has  undergone  silent 
change  and,  as  the  years  pass,  is  found  to  be  adequate  to 
new  social  and  national  requirements.  In  fact,  the  process 
of  judicial  interpretation  tends  to  render  amendment  un- 
necessary. Secondly,  the  federal  constitution  is  a  model  of 
brevity  and  of  style.  The  constitution  of  this  State,  on  the 
contrary,  besides  being  almost  too  easily  capable  of  amend- 
ment, has  become  extremely  prolix.  The  framework  of 
government  should  be  brief ;  it  should  be  the  crystallization 
of  large  and  well-accepted  principles.  The  constitution  of 
the  State  has  instead  become  a  most  unwieldy  document. 

It  would  be  easy  to  trace  alternations  of  popular  feeling 
regarding  the  three  separate  branches  of  government  in  the 
various  successive  constitutions  of  the  State.  In  the  reaction 
from  English  tyranny,  which  led  to  the  Declaration  of 
Independence,  every  State  began  its  career  with  a  fear,  if 
not  a  sort  of  hatred,  of  executive  power.  Today,  notwith- 
standing the  march  of  democracy,  the  reaction  is  in  favor 
of  enlarged  executive  authority.    Government  by  executive 


STATE   OF   NEW   YORK  25 

commission  is  rampant,  and  a  corresponding  distrust  of  leg- 
islatures is  manifested  in  numerous  checks  and  limitations. 
Those  who  are  convinced  that  executive  government  is 
wise,  and  who  are  inclined  to  give  free  rein  to  the  execu- 
tive, should  study  the  history  of  the  counter  movements 
given  in  the  following  pages. 

The  judiciary  has  undergone  wonderful  transforma- 
tions, yet  more  consistently  than  any  other  branch  of  the 
government  has  maintained  its  prestige  and  authority;  but 
it  is  at  present  too  closely  affiliated  with  the  people  through 
the  elective  system. 

The  extent  of  our  indebtedness  to  the  distant  past  is  a 
subject  which  has  received  abundant  consideration  from 
historians.  But  it  is  time  that  history  should  be  written 
with  an  eye  to  the  future,  and  with  more  attention  to  the 
intermediate  development  of  the  State.  If  conventions 
have  made  their  mistakes,  these  should  be  pointed  out,  lest 
they  be  repeated.  Too  much  confidence  should  not  be  re- 
posed in  the  opinion  of  the  moment,  however  strong  and 
convincing  it  seems  to  be.  Even  with  the  utmost  freedom 
of  speech  and  of  the  press,  majority  sentiment  has  an  in- 
vincible habit  of  preventing  minority  thought  from  obtain- 
ing full  expression  or  receiving  proper  consideration.  One 
thing  which  should  stimulate  the  interest  of  its  citizens  in 
the  constitutional  history  of  New  York  is  the  reflection  that 
the  State  has  often  been  a  leader  and  pioneer  in  constitu- 
tional development.  It  has  blazed  the  path  in  which  other 
States  have  followed.  Appreciation  of  this  is  pleasurable, 
but  the  high  record  of  the  State  in  this  respect  should  be 
maintained  in  the  future,  and  this  can  best  be  done  if  its 
constitutional  evolution  is  widely  studied  and  understood. 


26  CONSTITUTIONAL   HISTORY 


CHAPTER   II 

INDEBTEDNESS  OF  THE  STATE  TO  ROMAN  LAW  AND  TO  DUTCH 
BEGINNINGS — THE  CHARTER  GRANTED  BY  THE  STATES 
GENERAL  TO  THE  DUTCH  WEST  INDIA  COMPANY COM- 
MISSIONS ISSUED  TO  THE  GOVERNORS  OF  THE  COLONY 

THE  CHARTER  OF  FREEDOMS  AND  EXEMPTIONS — TRIBU- 
LATIONS OF  THE  COLONISTS  UNDER  DUTCH  RULE EX- 
TENT   OF    THE   DUTCH    CLAIMS    IN    NORTH    AMERICA 

SURRENDER   OF    NEW    AMSTERDAM    TO    THE   ENGLISH 

THE  DUKE^S  1.AWS ;   GOVERNMENT   UNDER   ANDROS  AND 

DONGAN THE  CHARTER  OF  LIBERTIES  AND  PRIVILEGES 

^THE  COLONY  UNDER  SLOUGHTER^  THE  GOVERNOR  AP- 
POINTED   BY    WILLIAM    III THE    CHARTER    OF    1 69 1 

TYPE  OF  GOVERNMENT  UNTIL  THE  OUTBREAK  OF  THE 
REVOLUTION THE  BRITISH  PARLIAMENT  HAD  NO  AU- 
THORITY OVER  THE  COLONIES — THE  CONSTITUTION  OF 
THE  COLONY  OF  NEW  YORK  AT  THE  DATE  OF  THE  REVO- 
LUTION AN  OUTGROWTH  OF  DUTCH  AND  ENGLISH  CUS- 
TOMS AND  LAWS LIMITED  CHARACTER  OF  SUFFRAGE. 

Originally  a  colony  of  Holland,  New  York  traces  no 
inconsiderable  measure  of  her  character  and  polity  to  her 
Dutch  origin,  and,  through  Holland,  to  Roman  ideas.  The 
influence  of  her  Dutch  beginnings  pervades  the  life  of  to- 
day. The  indebtedness  of  all  the  States  to  Roman  law  and 
Roman  civilization  is  now  generally  recognized.  If  the 
pressure  of  population  upon  the  means  of  subsistence  had 
not  driven  Rome  to  comprehensive  colonization,  her  juris- 
prudence might  never  have  been  established  in  Western 
Europe.  As  West  European  nations  made  settlements  in 
America,  Roman  public  law,  with  its  doctrine  of  title  by 


STATE   OF   NEW   YORK  2y 

discovery,  came  to  control  the  destinies  of  English,  French, 
Spanish  and  Dutch  colonies.  Thus  the  theory  developed 
by  Grotius  and  other  Dutch  publicists  led  to  the  conflicting 
claims  of  Holland  and  England  to  the  province  of  New 
Netherland,  and  eventually  to  the  surrender  of  the  Dutch 
colony  to  the  stronger  power  of  England.  In  many  aspects 
our  laws  and  customs,  commonly  supposed  to  be  of  British 
descent,  may  be  ascribed  to  Latin  sources,  and  to  the  Roman 
law  which,  says  Sir  Henry  Maine  in  his  work  on  the  ''Early 
History  of  Institutions,"  "next  to  the  Christian  religion,  is 
the  most  plentiful  source  of  the  rules  governing  actual  con- 
duct throughout  Western  Europe."  ^ 

The  corollaries  from  the  principle  of  title  by  discovery 
have  governed  the  course  of  all  titles  to  real  estate  in  New 
York,  and  generally  throughout  the  United  States.  The 
State  alone,  as  successor  to  the  discovering  nationality, 
could  extinguish  the  Indian  claim,  or  convey  ownership  of 
land ;  no  direct  bargain  of  any  individual  or  company  with 
the  aboriginal  tribes,  even  if  made  in  the  highest  faith  and 
for  consideration,  could  give  the  purchaser  a  shadow  of 
title  as  against  a  subsequent  patentee  from  the  common- 
wealth. This  principle  was  early  announced  by  the  Su- 
preme Court  of  the  United  States  as  underlying  all  titles  to 
land  from  the  Indians,  which  could  be  had  only  under  grant 
from  the  general  government.^ 


*  "Acquisition  of  territory  has  always  been  the  great  spur  of  na- 
tional ambition,  and  the  rules  which  govern  this  acquisition,  together 
with  the  rules  which  moderate  the  wars  in  which  it  too  frequently 
results,  are  merely  transcribed  from  the  part  of  the  Roman  law  which 
treats  of  the  modes  of  acquiring  property  jure  gentium.  *  *  * 
Those  parts  of  the  international  system  which  refer  to  dominion,  its 
nature,  its  Hmitations,  the  modes  of  acquiring  and  securing  it,  are  pure 
Roman  Property  Law."    Maine's  "Ancient  Law,"  pp.  74,  75- 

"The  Roman  principle  of  Occupancy,  and  the  rules  into  which  the 
jurisconsults  expanded  it,  are  the  source  of  all  modern  International 
Law  on  the  subject  of  Capture  in  War  and  of  the  acquisition  of  sover- 
eign rights  in  newly  discovered  countries."     Id.,  p.  180. 

'Johnson  v.  MTntosh,  8  Wheaton,  543. 


28  CONSTITUTIONAL    HISTORY 

Although  the  Dutch  discovery  occurred  in  1609,  there 
seems  to  have  been  no  real  government  in  New  Netherland 
until  a  charter  was  granted  by  the  States  General  to  the 
Dutch  West  India  Company  on  June  3,  1621.  This  charter, 
in  imitation  of  the  charter  of  the  Dutch  East  India  Com- 
pany, conferred  remarkably  broad  administrative  and  ju- 
dicial powers.  In  order  to  curb  Portugal  and  Spain,  and 
to  advance  her  own  commercial  and  colonial  interests  in 
the  distant  East,  the  Holland  government  had  clothed  the 
East  India  Company  with  almost  irresponsible  authority. 
In  the  new  western  world  England  also  was  her  competi- 
tor, and  in  the  general  rivalry,  especially  that  between  these 
two  nations,  it  had  seemed  wise  to  invest  the  West  India 
Company  with  similar  latitude  of  jurisdiction.  The  pri- 
mary purpose  of  the  charter  was  commercial :  the  corpora- 
tion was  to  found  colonies  and  carry  on  trade,  navigation, 
and  commerce  upon  the  coasts  of  Africa,  North  America, 
and  the  West  Indies.  For  the  accomplishment  of  its  pur- 
poses it  was  invested  with  power  to  employ  soldiers  and 
fleets,  build  forts,  make  treaties,  appoint  and  remove  gov- 
ernors, officers  of  justice,  and  other  public  officials;  to  main- 
tain order  and  police,  and  to  administer  justice.  The  gov- 
ernment of  a  corporation  armed  with  such  extraordinary 
powers  was  under  the  ultimate  supervision  of  the  States 
General.  There  were  five  separate  chambers  in  the  com- 
pany, and  to  one,  the  chamber  of  Amsterdam,  was  commit- 
ted the  management  of  the  affairs  of  New  Netherland.  The 
central  power  was  vested  in  an  assembly  of  nineteen  dele- 
gates representing  both  the  separate  chambers  and  the  States 
General,  and  commonly  known  as  the  Assembly  of  XIX. 
All  officers  were  required  to  take  a  double  oath  of  allegiance 
— to  the  Company,  and  to  the  States  General.  The  colony 
of  New  Netherland  was  established  by  the  Company  at 
New  Amsterdam  in  1623. 

The  broad  commissions  issued  by  the  States  General  at 
the  request  of  the  Dutch  West  India  Company  to  the  gov- 


STATE   OF    NEW    YORK  29 

ernors  of  the  colony  might  seem  unpropitious  beginnings 
for  popular  government.  The  director,  as  the  governor  was 
styled,  seemed  in  practice  as  absolute  and  uncontrolled  in 
his  jurisdiction  as  was  Warren  Hastings  in  the  succeeding 
century  in  India;  the  one  had  for  his  subjects  colonists  from 
Holland,  the  other  ruled  numerous  tribes  of  an  alien  race. 
The  Dutch  director  extinguished  Indian  titles  or  sanctioned 
their  purchase.  His  ratification  was  essential  to  the  valid- 
ity of  every  contract.  He  created  the  courts,  appointed 
nearly  all  public  officials,  enacted  laws  and  ordinances  as  a 
Roman  emperor  issued  edicts,  incorporated  towns,  imposed 
taxes,  levied  fines,  and  inflicted  penalties.  He  possessed  a 
power  almost  as  extensive  over  the  currency  of  the  colony 
as  did  Philip  the  Fair  over  that  of  France.  He  determined 
the  value  of  the  wampum,  the  chief  money  of  the  time.  No 
jury  aided  him  in  the  decision  of  criminal  or  civil  causes; 
he  determined  these  himself.  While  his  commission  usually 
required  him  to  recognize  the  cognate  jurisdiction  of  what 
was  termed  the  Council,  he  habitually  ignored  this  body  as 
a  restraint  upon  his  plenary  authority.  Yet,  in  spite  of  these 
uncongenial  beginnings,  a  degree  of  popular  government 
was  evolved.  The  Dutch  colonists,  like  the  sturdy  individ- 
ualists who  founded  New  England,  carried  in  their  spirits 
the  best  traditions  of  their  native  country,  its  devotion  to 
liberty,  secular  and  religious;  to  freedom  of  speech,  and 
to  education.  Men  nurtured  in  the  independent  air  of  Hol- 
land could  not  be  expected  long  to  endure  tyrannical  govern- 
ment. Their  situation  in  a  new  country,  surrounded  by  wild 
tribes  of  the  forest,  amidst  novel  experiences  and  sudden 
dangers  which  compelled  the  director  frequently  to  consult 
with  the  chiefs  of  the  people,  was  especially  conducive  to 
the  development  of  independence.  It  is  not  surprising  that 
the  history  of  the  colony  during  the  Dutch  era  shows  the 
steadfast  resistance  of  its  people  against  the  tyranny  of 
governors,  repeated  protests  to  the  home  authorities  against 
the  pretensions  of  arbitrary  power,  and  unswerving  insist- 


30  CONSTITUTIONAL   HISTORY 

ence  upon  the  rights  of  free  men — among  these,  the  right, 
long  previously  familiar  to  Dutchmen  as  well  as  to  Eng- 
lishmen, of  representative  government. 

On  June  7,  1629,  there  was  granted  the  Charter  of 
Freedoms  and  Exemptions,  which  introduced  the  feudal 
system  into  part  of  the  colony,  and  conferred  special  privi- 
leges and  powers  on  all  patroons,  masters,  or  private  per- 
sons who,  as  the  language  ran,  would  "plant  colonies  in 
New  Netherlands."  The  patroons  were  authorized  to  erect 
courts  of  justice,  and  courts  known  as  the  patroons'  courts 
were  accordingly  established,  exercising  unlimited  civil  and 
criminal  jurisdiction  within  the  patroons'  territory.  In 
these  tribunals  the  patroon  presided  in  person,  or  by  deputy. 
He  appears  to  have  been  clothed  with  the  extraordinary 
power  of  life  and  death,  and  could  decide  all  civil  suits  aris- 
ing within  his  jurisdiction,  subject — where  he  rendered 
judgment  for  a  sum  exceeding  fifty  guilders — to  an  appeal 
to  the  Director  General  and  The  Council  of  New  Amster- 
dam. This  right  of  appeal  was  reserved  in  the  original 
charter  under  which  the  patroons  held,  but  it  was  practi- 
cally defeated  by  the  exaction  from  tenants,  before  they 
came  upon  the  manor,  of  a  condition  that  they  would  in  no 
case  appeal  from  the  judgment  of  the  manorial  court.  The 
patroon  was  the  overlord  of  his  tenants,  to  whom  he  leased 
land  upon  rigorous  terms,  each  tenant  submitting  himself  as 
a  faithful  subject  bound  by  an  oath  of  fealty  and  allegiance 
to  a  master  clothed  with  almost  boundless  civil,  military 
and  judicial  authority  within  his  demesnes.  It  was  under 
this  charter  that  Kiliaen  van  Rensselaer,  a  merchant  prince 
of  Amsterdam  and  a  director  in  the  West  India  Company, 
obtained  title  to  extensive  tracts  of  land  embraced  in  what 
are  now  the  counties  of  Albany,  Rensselaer,  and  Columbia. 
The  story  of  the  influence  of  the  patroon  system  forms  a 
chapter  of  profound  interest  in  the  history  of  the  State. ^ 


'The  origin,  development  and  consequences  of  the  patroon  system 
are  treated  by  Mr.  Charles  Z.  Lincoln,  in  his  "Constitutional  History 
of  New  York,"  vol.  II,  pp.  10-27. 


STATE   OF   NEW   YORK  31 

Broad  as  was  the  authority  conferred  by  the  Company 
upon  the  director,  it  was  in  theory  not  altogether  unbridled ; 
a  Council  was  to  form  part  of  the  colonial  administration, 
and  the  Governor  was  expected  to  confer  with  it  before 
acting.  He  was  necessarily  left  free  to  determine  when  he 
should  seek  its  advice,  and  the  natural  result  was  an  indis- 
position to  request  any.  In  this  Council,  and  the  Council 
established  under  English  rule,  may  be  found  the  genesis  of 
the  State  Senate. 

When  Minuit  was  appointed  Director  (1626),  there 
was  associated  with  him  a  Council  of  Five,  and  the  Direc- 
tor and  Council  were  by  his  comrriission  to  possess  all  ex- 
ecutive, legislative  and  judicial  power  subject  to  certain 
appellate  jurisdiction  of  the  Assembly  of  XIX,  and  subse- 
quently of  the  Amsterdam  Chamber.  The  commission  to 
Van  Twiller,  his  successor  in  1633,  also  provided  for  a 
Council,  as  did  the  commission  to  Kieft,  appointed  in  lieu 
of  Van  Twiller  in  1638.  But  in  reorganizing  the  adminis- 
tration of  affairs,  Kieft  preserved  merely  the  shadow  of  a 
Council  by  appointing  only  one  person  besides  himself  a 
member,  giving  his  appointee  one  vote  and  reserving  two 
votes  to  himself.  "For  nine  years  he  misgoverned  the 
colony."  He  was  ever  embroiled  in  trouble  with  the  na- 
tives or  the  colonists,  and  was  constantly  inflicting  fines, 
confiscations  and  banishments;  "and  though  an  appeal  lay 
from  his  judicial  decisions  to  the  Chamber  at  Amsterdam, 
he  effectually  cut  it  off,  by  subjecting  to  fine  or  imprison- 
ment any  one  who  attempted  to  resort  to  it."  Yet  it  was 
under  this  Director  that  the  first  semblance  of  a  representa- 
tive assembly  was  formed,  for  it  became  necessary  for  him 
to  consult  with  heads  of  families  regarding  the  treatment 
of  the  Indians,  and  the  conferences  to  which  he  summoned 
the  leading  spirits  of  the  colony  resulted  in  their  electing  a 
separate  council  of  twelve  men.  Its  manifestations  of  in- 
dependence impelled  Kieft  to  put  an  interdict  upon  the 
meeting  of  its  members  without  his  authority,  but  further 


32  CONSTITUTIONAL    HISTORY 

difficulties  with  the  Indians  and  troubles  with  neighboring 
colonies  forced  him  once  more  to  seek  its  advice,  and  this 
led  to  the  formation  of  a  new  representative  body  of  eight 
men.  Kieft's  petty  tyrannies  led  to  his  recall,  and  the  ap- 
pointment of  Stuyvesant,  the  last  of  the  directors,  who  was 
to  prove  no  less  intractable  than  his  predecessors.  Stuyve- 
sant, upon  his  arrival  as  Governor,  issued  a  proclamation 
requesting  the  people  to  choose  eighteen  persons  from 
among  the  most  honorable  and  respectable  of  their  number, 
who  in  turn  were  to  select  a  Council  of  nine  to  participate 
with  him  in  the  government.  The  commission  to  Stuyve- 
sant shows  that  he  was  expected  to  summon  a  Council  to 
share  his  extraordinary  powers.  It  is  evident,  therefore, 
that  the  body  known  as  the  Nine  Men,  whom  Stuyvesant 
himself  called  the  ^'Tribunes  of  the  People,"  represented  a 
new  element  in  the  colonial  government,  although  an  ele- 
ment well  known  in  the  Fatherland.  Like  Kieft's  Council 
of  Twelve,  it  was  a  species  of  representative  assembly.  If 
the  share  of  the  Council  in  the  administration  was  limited, 
the  share  of  this  nascent  assembly  was  far  more  so.  Stuy- 
vesant ill  brooked  the  aid  of  the  Council,  and  was  less  will- 
ing to  concede  any  power  to  the  assembly. 

The  affairs  of  the  colony  rendered  despotic  government 
impossible.  As  conferences  of  delegates  had  repeatedly  to 
be  called,  there  was  repeated  remonstrance  against  the  Di- 
rector's tyrannical  exercise  of  power.  A  convention  held 
on  December  lo,  1653,  formulated  an  earnest  protest  to 
the  Director  and  Council  and  to  the  States  General.  It 
objected  to  "arbitrary  government,"  and  declared  that  the 
consent  of  the  people  or  their  representatives  was  necessa- 
rily required  in  the  enactment  of  laws  and  orders  affecting 
their  lives  and  property.  The  Director  replied  to  the  re- 
monstrance, and  controversies  between  him  and  the  col- 
onists continued  until  the  termination  of  Dutch  control. 
Resistance  to  one-man  power,  insistence  upon  the  right  of 
the  people  to  take  part  in  legislation,  and  upon  the  necessity 


STATE   OF   NEW    YORK  33 

of  a  representative  body  to  approve  the  action  of  the 
Director  and  Council,  v^ere  steadfastly  maintained  up  to  the 
date  of  the  Dutch  capitulation  to  the  English. 

The  contest  between  the  Dutch  and  the  English  for  con- 
trol of  the  colony  grew  out  of  their  conflicting  claims,  the 
English  challenging  the  right  of  the  Dutch  on  the  ground  of 
their  own  earlier  discovery.  The  Dutch  claims  included  the 
present  States  of  New  Jersey  and  Delaware,  where  they 
w^ere  maintained,  and  Pennsylvania,  where  they  were  only 
asserted.  They  extended  into  Connecticut  as  far  east  as 
the  Connecticut  River,  and  embraced  Long  Island  also,  al- 
though the  English  had  made  actual  settlements  there  as 
early  as  1640.^  The  grant  made  by  Charles  II.  to  his 
brother  James,  Duke  of  York,  upon  which  the  Duke  based 
his  title  to  New  Netherland,  included  a  large  part  of  Maine 
and  all  the  territory  between  the  Delaware  and  Connecticut 
rivers;  but,  before  Nicolls'  arrival  at  New  Amsterdam,  the 
Duke  had  transferred  his  right  to  New  Jersey  to  other  pro- 
prietors. Hence,  when  the  Dutch  colony  passed  under  Eng- 
lish control,  its  boundaries  were  uncertain  and  shadowy. 
The  boundary  line  between  New  York  and  Connecticut  was 
not  fixed  until  1728.  The  disputed  boundary  between  New 
York  and  Massachusetts  led  to  a  suit  between  the  two 
States  before  the  Congress  of  the  Confederation,  and  the 
controversy  was  finally  settled — New  York  conceding  to 
Massachusetts  certain  rights  of  preemption  in  lands  in  the 
western  part  of  this  State.     The  boundary  between  New 


*  Emigrants  from  Massachusetts  and  Connecticut  moved  to  Long 
Island  in  such  numbers  that  in  1660  eleven  distinct  villages  had  been 
settled,  scattered  from  one  end  of  the  island  to  the  other  along  the 
coast,  or  on  smaller  bits  of  land  like  Shelter  Island.  The  English  towns 
on  Long  Island  were  at  first  independent,  all  questions  being  deter- 
mined by  majority  vote  in  town  meeting.  By  1662  all  the  Long  Island 
towns  had  united  with  either  New  Haven  or  Connecticut.  ("The  Ex- 
pansion of  New  England,"  by  Lois  Kimball  Mathews,  1910,  p.  34-) 
The  Long  Island  towns  east  of  the  Connecticut  boundary  line  sent 
their  delegates  to  the  Connecticut  legislature  and  considered  themselves 
part  of  that  state. 


34  CONSTITUTIONAL   HISTORY 

York  and  New  Jersey  remained  undetermined  until  a  treaty 
was  made  between  the  two  States  in  1833,  which  was  rati- 
fied by  their  respective  legislatures  and  Congress  in  1834. 

Unless  the  Duke  of  York  meant  to  renounce  his  title,  it 
was  necessary  that  he  should  enforce  his  claim  with  arms. 
An  English  squadron  under  Nicolls  was  sent  into  the  bay 
of  New  York  in  1664.  This  led  to  the  surrender  of  the 
colony  by  the  Dutch,  August  27,  1664,  O.  S.,  under  articles 
of  capitulation  entered  into  by  the  leading  citizens  of  New 
Amsterdam  with  the  English  commander.  By  these 
articles  ^  all  subjects  of  Holland  then  residents  in  the  colony 
were  to  remain  free  denizens  in  the  full  enjoyment  of  their 
private  property,  and  their  customs  respecting  inheritances ; 
and  liberty  of  religious  worship  was  also  accorded  them. 
New  York  was  retaken  by  the  Dutch  on  August  9,  1673, 
but  by  the  treaty  of  Westminster  in  the  following  year  it 
was  retroceded  to  the  English.  The  crown  lawyers  argued 
that,  by  the  treaty,  title  had  passed  to  the  King,  so,  to  meet 
their  doubts,  Charles  II.  gave  to  his  brother  James  a  second 
patent,  substantially  a  repetition  of  the  earlier  grant,  and 
the  colony  passed  from  the  proprietorship  of  the  Dutch 
corporation  to  the  proprietorship  of  an  English  duke. 

The  charters  granted  by  Charles  conferred  upon  his 
brother  plenary  powers  of  government,  including  the  power 
to  make  laws,  but  with  the  salutary  check  that  these  should 
not  be  contrary  to  the  law  of  England.  The  ''Duke's  Laws," 
which  are  said  to  have  been  compiled  by  Lord  Clarendon, 
the  Duke's  father-in-law,  from  laws  and  ordinances  in  other 
English  colonies,  but  containing  few  provisions  relative  to 
popular  rights,  were  promulgated  in  the  colony  March  i, 
1665,  after  their  adoption  by  a  convention  of  delegates  as- 
sembled at  Hempstead,  February  28,  1665,  from  towns  in 
Long  Island  and  Westchester,  which  were  largely  English 


'These  articles  are  reprinted  in  Appendix  No.  i,  in  vol.  II,  of 
the  "Laws  of  the  State  of  New  York,"  as  revised  by  Van  Ness  and 
Woodworth,  in  1813. 


STATE   OF   NEW   YORK  35 

settlements  enjoying  the  benefit  of  their  own  laws  and  cus- 
toms. The  ^'Duke's  Laws,"  or  "Nicolls'  Code,"  substituted 
the  leading  features  of  the  English  law  of  real  and  personal 
property  for  the  Dutch  law,  at  least  in  Long  Island  and 
Westchester,  for  no  delegates  had  been  elected  to  represent 
the  Dutch  of  New  Amsterdam,  and  it  could  hardly  have 
been  designed  to  bring  these  people,  who  were  unfamiliar 
with  English,  under  a  system  of  government  so  different 
from  that  to  which  they  were  accustomed.  Upon  the  re- 
establishment  of  English  authority  after  the  retrocession  by 
the  Dutch,  the  Duke  issued  a  commission  to  Major  Edmund 
Andros  recommending  him  to  continue  the  existing  courts 
of  justice,  authorizing  him  to  commission  officers  and  mag- 
istrates, and  requiring  the  appointment  of  a  Council  of  not 
more  than  ten  members,  inhabitants  of  the  colony,  with 
whom  he  was  to  consult  on  all  extraordinary  occasions. 
The  Governor  and  Council  formed  a  sort  of  colonial  legis- 
lature until  an  assembly  was  created  in  1683. 

The  administration  of  Andros  has  been  the  subject  al- 
ternately of  praise  and  censure.  According  to  some  his- 
torians, h<^  was  able  and  enlightened ;  by  others  he  has  been 
pronounced  arbitrary,  cruel  and  despotic,  without  sympathy 
with  the  popular  wish  for  a  representative  assembly.  His 
faults  were  those  of  his  master,  whose  desire  for  revenue 
from  the  colony  far  outstripped  his  interest  in  its  welfare, 
and  to  whom  assemblies  of  the  people  were  abhorrent, 
"nothing  being  more  known  than  the  aptness  of  such  bodies 
to  assume  to  themselves  many  privileges  which  prove  de- 
structive to  the  peace  of  government" ;  neither  could  he  "see 
any  use  for  them."  The  people  complained  of  the  Andros 
administration  in  a  petition  to  the  Duke,  declaring  that  inex- 
pressible burdens  were  put  upon  them  by  a  tyrannical  gov- 
ernment; that  unjust  revenues  were  collected  and  undue 
taxes  imposed  upon  trade,  and  that  they  were  esteemed  as 
nothing,  and  had  become  a  reproach  to  their  neighbors  in 
bis  Majesty's  other  colonies.    Accordingly,  Andros  was  re- 


36  CONSTITUTIONAL    HISTORY 

called,  although  in  1686  he  was  made  Governor  of  New 
England.  His  place  in  New  York  was  taken  by  Colonel 
Thomas  Dongan. 

The  commission  to  Dongan  (September  30,  1682)  in- 
structed him,  with  the  advice  of  the  Council,  to  issue  writs 
in  the  Duke's  name  for  the  election  of  a  general  assembly 
of  freeholders.  Ample  legislative  power  was  to  be  con- 
ferred upon  the  assembly,  subject  to  an  absolute  veto  by  the 
Governor  and  the  Duke.  This  concession  to  the  desire  of 
the  colony  James  made  upon  Penn's  advice,  and  because  of 
requests  from  men  of  every  rank  in  the  province.  The  as- 
sembly which  was  accordingly  chosen  was  a  notable  one.  It 
passed  a  law  subdividing  the  province  and  its  dependencies 
into  shires  and  counties,  and  also  passed  an  act  settling 
courts  of  justice  and  creating  a  court  of  chancery,  but  its 
chief  title  to  lasting  recollection  comes  from  its  promulga- 
tion, on  October  30,  1683,  of  the  famous  instrument  known 
as  the  Charter  of  Liberties  and  Privileges.^  The  charter  '^ 
declared  that  the  supreme  legislative  authority,  "under  his 
Majesty  and  Royall  Highness  should  forever  be  and  reside 
in  a  governor,  counsell  and  the  people  mett  in  General  As- 
sembly," and  it  provided  for  government  by  and  according 
to  the  laws  of  England,  liberty  of  choice  for  all  freeholders 
in  elections,  and  toleration  in  religion.  In  plainest  terms  it 
announced  that  no  taxes  of  any  kind  should  be  levied  with- 


""The  great  principles  enunciated  in  the  Charter  of  Liberties 
are,"  says  Lincoln,  in  his  "Constitutional  History  of  New  York," 
"drawn  from  the  immortal  Magna  Charta,  which  had  for  nearly  five 
centuries  been  the  source  and  strength  of  English  free  institutions ;  yet 
these  Dutchmen,  no  less  zealous  for  liberty  than  their  English  neigh- 
bors, were  willing  to  accept,  adopt,  and  assert  as  their  own,  the  rights 
of  citizens  as  defined  by  the  Great  Charter.  *  *  *  This  charter,  closely 
resembling  our  modern  constitutions  in  form  and  substance,  and  con- 
taining many  provisions  which  have  been  continued  in  those  instru- 
ments, might  properly  be  called  the  original  Constitution  of  New  York." 

^This  instrument  is  printed  in  the  Appendix  to  Van  Ness  and 
Woodworth's  Revision  of  the  Laws  of  the  State. 


STATE   OF   NEW    YORK  37 

in  the  province  without  the  assent  of  the  people's  repre- 
sentatives. 

The  charter  was  not  exactly  the  "pioneer  among  char- 
ters or  constitutions  conferring  upon  the  people  the  right  of 
representative  government,"  as  it  was  preceded  not  only  by 
the  ''Union  of  Utrecht,"  in  Holland,  but  also  by  the  Con- 
necticut charter  of  1639.  This  Connecticut  charter  was  the 
first  practical  assertion  in  America  of  the  right  of  the  people 
to  choose  their  officers  and  define  their  powers.  It  was  the 
work  of  that  great  Connecticut  divine,  the  Reverend 
Thomas  Hooker,  who  probably  had  imbibed  Dutch  ideas  of 
free  government  ^  while  living  at  Delft,  where  for  three 
years  he  had  held  a  pastorate.  The  Charter  of  Liberties, 
however,  was,  perhaps,  the  earliest  charter  distinctly  to 
formulate  the  principle  of  representation  as  a  condition  of 
taxation.  Although  it  seems  to  have  met  the  duke's  ap- 
proval, yet  upon  his  accession  to  the  throne  of  England  as 
the  successor  of  Charles  H.  in  1685,  he  decided  to  withhold 
his  royal  assent  to  it.  It  was  accordingly  vetoed  March  3, 
1685.  The  colony  ceased  to  be  a  proprietary,  and  became  a 
royal  province  when  the  duke  became  king.  A  new  com- 
mission was  issued  by  James  II.  to  Governor  Dongan,  May 
29,  1686.  It  rejected  the  Charter  of  Liberties,  but  con- 
firmed all  laws  of  the  Assembly  previously  allowed;  it  re- 
served the  entire  legislative  power  to  the  Governor  and 
Council,  subject  to  the  royal  veto.  All  laws,  statutes  and 
ordinances  were  to  conform  as  nearly  as  was  practicable  to 
the  laws  and  statutes  of  England;  no  provision  was  made 
for  any  representative  assembly.  In  civil  causes  where  the 
amount  in  controversy  exceeded  one  hundred  pounds  ster- 
ling, appeal  might  be  taken  to  the  Governor.  Further  ap- 
peal lay  to  the  king  in  council  where  the  amount  involved 
exceeded  three  hundred  pounds.    James  as  king  treated  the 


*"The  Puritan  in  Holland,  England  and  America,"  Douglas  Camp- 
bell, I,  416. 

"Connecticut,"  by  Alexander  Johnston,  pp.  71,  TZ- 


38  CONSTITUTIONAL    HISTORY 

colony  less  liberally  than  he  had  proposed  to  do  as  duke. 
The  probability  is  that  his  consent  to  the  call  of  a  general 
assembly  had  been  reluctantly  given,  as  he  was  never  a 
friend  of  popular  rule.  But  parliamentary  government, 
although  it  never  had  royal  sanction,  had  already  been 
launched  under  his  previous  commission  to  Dongan,  and  a 
movement,  impossible  to  check,  had  been  started.  The 
aspirations  of  the  colonists  were  soon  to  be  realized  under  a 
freer  government. 

Upon  the  accession  of  William  III.  to  the  throne  of 
England  as  the  successor  of  James,  a  commission  was  is- 
sued to  Henry  Sloughter  appointing  him  captain-general 
and  governor-in-chief  of  the  province  of  New  York.  It 
authorized  him  with  the  advice  and  consent  of  the  council 
to  summon  a  general  assembly  to  be  chosen  and  constituted 
substantially  like  earlier  assemblies.  The  governor  ordered 
the  election  of  a  new  assembly  which  met  on  April  9,  1691. 
From  that  date  until  the  Revolution  the  assembly  was  a 
regular  department  of  the  colonial  government.  Until  1716 
members  of  assembly  were  elected  biennially;  thereafter 
until  the  Revolution  they  were  elected  at  greater  intervals. 
The  assembly  of  169 1  drafted  a  new  charter  modeled  upon 
the  Charter  of  Liberties  and  Privileges  of  October,  1683. 
In  language  similar  to  that  employed  by  its  famous  prede- 
cessor it  declared  that  the  '^supreme  legislative  power  and 
authority"  should  be  and  reside  in  a  governor  and  council 
appointed  by  the  crown,  and  in  "the  people  by  their  repre- 
sentatives, mett  and  convened  in  general  assembly."  In 
accordance  with  the  views  of  the  time  "the  people"  were 
freeholders  owning  property  producing  forty  shillings  per 
annum.  This  charter  never  received  William's  approval; 
nevertheless  it  was  in  force  in  the  colony  for  upwards  of 
six  years. 

The  commission  to  Governor  Sloughter  to  summon  an 
assembly  had  been,  however,  a  recognition  by  the  crown  of 
the  right  of  the  colony  to  representative  government.    This 


STATE   OF   NEW   YORK  39 

assembly,  under  the  erroneous  impression,  says  Judge  Daly, 
that  none  of  the  acts  of  the  general  assembly  of  1683  and 
1684  had  been  affirmed  by  James,  and  that  all  were  there- 
fore void,  reorganized  the  judicial  system  of  the  colony 
with  a  court  of  chancery,  a  supreme  court,  a  court  of  com- 
mon pleas,  courts  of  sessions,  and  justices'  courts.^ 

The  charters  of  1683  and  1691  made  a  shadowy  differ- 
entiation between  executive,  legislative  and  judicial  author- 
ity. They  followed  in  the  main  the  English  theory  of 
colonial  government.  The  council  and  the  assembly  consti- 
tuted a  bicameral  legislature.  The  governor  and  after  him 
the  king  had  an  absolute  veto  on  all  its  acts.  Landed  pro- 
prietors alone  were  recognized  as  entitled  to  share  in  the 
business  of  government.  The  members  of  the  council  re- 
ceived their  commissions  from  the  crown,  but  the  governor 
had  a  qualified  right  to  fill  vacancies.  Besides  sitting  as  an 
upper  legislative  chamber,  the  council  sat  as  a  privy  council 
to  advise  and  assist  in  political  cases.  The  governor  was 
empowered  to  adjourn,  prorogue  and  dissolve  the  assembly 
in  his  discretion. 

Substantially  this  type  of  government  was  continued 
until  the  Revolution,  but  under  an  unwritten  constitution, 
no  actual  charter  having  been  in  force  after  1697.    As  has 


'Immediately  upon  the  passage  of  the  act,  the  Supreme  Court 
was  organized  and  Joseph  Dudley  appointed  Chief  Justice,  Thomas 
Johnson,  Second  Judge,  and  William  Smith,  Stephen  Van  Cortland  and 
William  Pinthorne,  Associate  Justices.  Thomas  Newton  was  appointed 
Attorney  General,  but  after  brief  service  he  was  succeeded  by  James 
Graham,  Recorder  of  New  York,  who  had  previously  filled  the  office. 
See  Judge  Daly's  "History  of  the  Court  of  Common  Pleas  for  the 
City  and  County  of  New  York,  with  an  account  of  the  Judicial  Organ- 
ization of  the  State  and  of  its  Tribunals,  from  the  time  of  its  settle- 
ment by  the  Dutch  in  1623  until  the  adoption  of  the  State  Constitution 
of  1846."  Judge  Daly's  essay  is  a  most  admirable  exposition  of  the 
political  and  judicial  history  of  the  colony,  and  evidently  a  work  involv- 
ing great  research  and  composed  in  most  excellent  style.  It  cannot  be 
too  highly  commended  to  the  student  of  the  earlier  institutions  of  New 
York.  It  appears  as  an  introduction  in  volpwe  I  E.  D.  Smith's  Re- 
ports. 


40  CONSTITUTIONAL   HISTORY 

been  well  said  by  Mr.  Lincoln  in  his  treatise  upon  our 
constitutional  history,  the  student  who  would  understand 
the  essentials  of  the  institutions  which  by  degrees  had  been 
evolving  in  the  colony,  will  find  them  formulated  in  the 
commission  issued  in  February,  1771,  three  years  before 
the  commencement  of  the  Revolution,  by  George  III.  to 
Governor  William  Tryon,  and  in  the  instructions  that  ac- 
companied and  explained  the  commission. 

In  an  explanation  of  the  nature  of  the  colonial  constitu- 
tion, transmitted  by  Governor  Tryon  to  the  home  govern- 
ment in  1774,  its  salient  features  are  briefly  yet  thoroughly 
described.  The  constitution,  since  it  became  a  royal  prov- 
ince, "nearly  resembled  that  of  Great  Britain  and  the  other 
royal  governments  in  America."  The  governor  was  the 
king's  appointee  and  held  office  during  the  royal  pleasure; 
he  had  a  council  in  imitation  of  his  majesty's  council;  the 
province  **enjoyed  a  legislative  body"  consisting  of  the 
council  and  representatives  of  the  people  "chosen  as  in  Eng- 
land," which  the  governor  might  adjourn,  prorogue  or  dis- 
solve; it  could  make  no  laws  repugnant  to  the  laws  and 
statutes  of  Great  Britain,  and  over  all  its  enactments  the 
governor  possessed  an  absolute  veto.  Within  three  months 
after  its  passage,  every  law  was  required  to  be  sent  to  his 
majesty  for  his  approval.  The  governor  was  not  to  give 
his  consent  to  any  law  that  was  not  to  remain  in  force  for 
two  years.  No  clause  foreign  to  the  import  of  the  title  of 
an  act  might  be  inserted  in  that  act,^^  and  no  act  might  be 
suspended,  altered,  continued,  revived  or  repealed  by  gen- 
eral words,  but  the  title  and  date  of  any  such  act  was  re- 
quired to  be  particularly  mentioned  in  the  enacting  part. 
The  province  had  a  court  of  chancery  in  which  the  governor 
sat  as  chancellor,  and  courts  of  common  law,  the  chief  being 
the  supreme  court,  the  judges  of  which  held  their  commis- 
sions at  the  king's  pleasure,  and  there  were  county  courts 


"This  reappears  in  substance  in  the  State  Constitution  in   1874 
(Art.  Ill,  §  17). 


STATE   OF   NEW   YORK  41 

of  less  jurisdiction,  and  justices  of  the  peace  to  try  minor 
causes.  There  were  also  criminal  courts  "correspondent  to 
those  in  England."  Besides  these  tribunals,  all  administered 
according  to  the  common  law,  there  was  a  court  of  ad- 
miralty which  proceeded  "after  the  course  of  the  civil  law," 
and  a  prerogative  court,  charged  with  the  probate  of  wills, 
the  administration  of  estates  and  the  issuing  of  licenses  for 
marriage.  The  governor  was  commander-in-chief  and  ap- 
pointed all  military  officers,  who  held  at  his  pleasure.  He 
had  power  to  suspend  the  lieutenant-governor  and  members 
of  the  council,  and  to  grant  pardons,  except  in  cases  of 
treason  and  murder.  The  colony  could  erect  forts  and  other 
means  of  defense  and  estabUsh  and  maintain  a  militia.  Pub- 
lic money  was  to  be  paid  only  on  the  governor's  warrant, 
approved  by  the  council.  The  common  law  of  England  was 
considered  the  fundamental  law  of  the  province  and,  con- 
tinued the  governor,  "it  is  the  received  doctrine  that  all 
statutes  not  local  in  their  nature  and  which  can  be  fitly  ap- 
plied to  the  circumstances  of  the  colony,  enacted  before  the 
province  had  a  legislature,  are  binding  upon  the  colony ;  but 
that  statutes  passed  since  do  not  affect  the  colony,  unless  by 
being  specially  named.  Such  appears  to  be  the  intention  of 
the  British  Legislature." 

This  clause  is  the  only  reference  in  this  document  to  the 
jurisdiction  of  the  British  Parliament  over  the  colonies,  and 
it  is  interesting  to  note  that  it  is  practically  coincident  with 
the  first  denial  by  the  colonies  of  the  power  of  that  body  to 
legislate  for  them.  The  theory  that  the  British  Parliament 
had  no  authority  whatsoever  over  the  colonies  was  as  much 
a  development  as  the  now  generally  accepted  theory  of  the 
relation  of  the  States  to  the  Nation,  which  was  never  trium- 
phant until  the  Civil  War.  From  the  English  point  of  view, 
the  American  colonies  were,  as  has  well  been  said,  cor- 
porations holding  their  charters  at  the  pleasure  of  the 
sovereign,  and  subject  to  dissolution  by  quo  warranto  pro- 
ceedings in  his  courts,  and,  above  all,  subject  to  legislation 


42  CONSTITUTIONAL    HISTORY 

by  Parliament,  which,  according  to  Blackstone,  was  "bound- 
less in  its  operations/'  Lord  Macaulay  mistakenly  assumes 
that  down  to  the  Revolution  the  colonies  admitted  the  au- 
thority of  Parliament,  save  as  to  the  power  of  taxing. 
When  Parliament  came  to  enforce  the  Navigation  Act  and 
other  measures  inimical  to  colonial  commerce  and  to  rights 
which  they  conceived  to  be  theirs  as  free  men,  the  colonists 
were  impelled  to  examine  the  foundations  of  alleged  parlia- 
mentary authority,  and  forced  logically  to  the  conclusion 
that  the  English  Parliament  was  a  foreign  body  which  had 
never  had  jurisdiction  over  them.  They  were  subjects  of 
the  king,  with  parliaments  of  their  own.  The  British  Par- 
liament had  no  jurisdiction  beyond  the  seas,  and  no  power 
to  tax  the  colonies  or  even  legislate  for  them.  The  Conti- 
nental Congress  (1765)  had,  it  is  true,  memorialized  Par- 
liament as  well  as  the  king,  but  the  Continental  Congress  of 
1774  omitted  all  mention  of  Parliament  in  its  petition.  And 
the  climax  of  this  reasoning  is  reached  in  the  Declara- 
tion of  Independence,  which  arraigned  the  king  for  his  at- 
tempt "to  subject  us  to  a  jurisdiction  foreign  to  our  consti- 
tutions, and  unacknowledged  by  our  laws,  giving  his  assent 
to  these  acts  of  pretended  legislation."  Language  could  not 
more  clearly  deny  the  authority  of  the  British  Parliament 
not  alone  to  tax  but  also  to  legislate  for  the  North  American 
colonies,  and  this  foreign  parliament  had  suspended  "our 
own  legislatures"  and  declared  itself  invested  with  power  to 
legislate  for  us.^^ 

The  constitution  of  the  colony  of  New  York,  as  it  ex- 
isted at  the  date  of  independence  (although  it  was  not  a 
written  instrument),  was  the  outgrowth  of  Dutch  as  well 
as  English  customs  and  laws,  for  from  the  Dutch  had  been 
inherited  the  idea  of  free  education,  the  system  of  record- 
ing instruments  affecting  real  estate,  and  the  doctrine  that 
the  people  are  the  ultimate  source  of  authority.    The  city  of 


"Article  on  "United  States"  by  Alexander  Johnston,  in  "Encyclo- 
paedia Britannica/'  ninth  ed. 


STATE   OF   NEW   YORK  43 

New  York  owes  to  Stuyvesant  the  earliest  rudiments  of  a 
city  charter.  The  men  who  framed  the  first  State  constitu- 
tions, and  who  drafted  the  Constitution  of  the  United 
States,  were  as  famihar  with  the  ''Union  of  Utrecht"  and 
the  government  of  Holland  as  they  were  with  the  republics 
of  Greece  and  Rome.  The  pages  of  The  Federalist  are  filled 
with  allusions  to  Dutch  history  and  institutions.  Equally 
profound  was  their  knowledge  of  Montesquieu,  and  to  him 
were  they  indebted  for  a  thorough  understanding  of  the 
necessity  for  keeping  the  three  great  departments  of  govern- 
ment separate.  They  knew  intimately  the  character  of  the 
colonial  constitutions  under  which  they  lived.  From  these 
sources  they  were  summoned  to  construct  a  new  govern- 
ment, or,  rather,  to  adapt  government  to  the  new  conditions 
by  which  they  were  confronted.  That  they  should  retain 
all  for  which  they  and  their  ancestors  had  struggled,  and 
the  jurisprudence  they  enjoyed,  was  to  have  been  expected; 
that  they  should  reject  a  system  which  had  made  judges  sub- 
servient creatures  of  the  appointing  power,  and  should 
evince  distrust  of  executive  authority,  might  equally  have 
been  anticipated  in  view  of  the  king's  recent  encroachments 
upon  their  rights.  That,  while  declaring  their  profound 
belief  in  the  inalienable  rights  of  the  individual,  they  should 
organize  governments  in  which  substantially  all  power  was 
reserved  to  the  land  owner,  while  it  may  seem  extraordi- 
nary, was  only  natural.  The  colonial  government  was  a 
government  of  the  land  owner,  for  in  none  of  the  first  con- 
stitutions of  the  original  thirteen  States  did  the  people  re- 
ceive any  consideration  in  either  branch  of  the  legislature. 
The  idea  crystallized  in  John  Jay's  maxim  that  those  who 
owned  the  country  ought  to  govern  it,  underlay  every  con- 
stitution. The  government  set  up  by  many  a  constitution, 
despite  the  principle  announced  in  its  preamble,  was  in 
reality  that  of  a  class.  Not  until  after  the  beginning  of 
Jefferson's  administration  did  the  States  commence  to 
broaden  the  suffrage. 


44  CONSTITUTIONAL    HISTORY 


CHAPTER    III 

IMPULSES  TOWARDS  STATE  GOVERNMENT  COME  FROM  CONTI- 
NENTAL CONGRESS CHAOTIC  CONDITIONS  AT  OUT- 
BREAK OF  REVOLUTION,  AND  FORMATION  OF  PROVIN- 
CIAL   GOVERNMENTS    IN     THE    COLONIES THE    THIRD 

PROVINCIAL    CONGRESS    OF    NEW    YORK THE    FOURTH 

PROVINCIAL  CONGRESS,  OR  FIRST  CONSTITUTIONAL  CON- 
VENTION  THE  WORK  OF  THE  CONVENTION,  THE  COUN- 
CIL OF  APPOINTMENT,  THE  COUNCIL  OF  REVISION,  THE 

JUDICIARY,  SENATE  AND  ASSEMBLY OTHER   FEATURES 

OF  THE  CONSTITUTION ITS  SIMPLICITY EARLY  GOV- 
ERNMENT IN  THE  INFANT  STATE NEW  YORK  ACCEPTS 

THE    ARTICLES    OF    CONFEDERATION THE    ACTION    OF 

THE  STATE  LEGISLATURE,  ULTRA  VIRES GRATIFICATION 

OF    THE    FEDERAL    CONSTITUTION PREVISION     OF    THE 

LAWS NEW   YORK   CEDES   HER  LANDS  IN   THE  WEST 

THE    PRACTICE   OF    LAW UNSUCCESSFUL   ATTEMPT    BY 

BURR  TO  ABOLISH  SLAVERY BEGINNINGS  OF  EDUCA- 
TION. 

That  union  of  some  sort  among  the  colonies  preceded 
the  independent  existence  of  any  State  seems  the  plain 
teaching  of  history.  "The  irrepressible  tendency  toward 
union/'  as  Judge  Jameson  has  termed  it,  is  perceptible  as 
far  back  as  1643.  I^  gathered  additional  momentum  in 
1748  and  1754.  It  received  a  powerful  re-enforcement 
when  the  Stamp  Act  Congress  assembled  in  1765.  It  be- 
came the  sentiment  of  all  the  colonies  when  the  First  Con- 
tinental Congress  met  at  Philadelphia  in  1774  to  memorial- 
ize the  king,  for  its  petition,  as  has  been  observed,  studi- 


STATE   OF   NEW   YORK  45 

ously  ignored  parliament  as  a  body  having  no  jurisdiction 
in  America.  The  sentiment  for  union  gained  strength  from 
the  Second  Continental  Congress  which  convened  at  Phila- 
delphia, May  10,  1775.  Down  to  this  date  no  colony  had 
undertaken  to  assert  its  independence  of  Great  Britain,  and 
probably  none  would  have  done  so  singly.  As  Charles  C. 
Pinckney  well  said  in  the  South  Carolina  legislature  in  1788, 
in  speaking  of  the  Declaration  of  Independence :  "The  sep- 
arate independence  and  individual  sovereignty  of  the  several 
States  were  never  thought  of  by  the  enlightened  band  of 
patriots  who  framed  the  Declaration  of  Independence."  It 
was  the  Second  Continental  Congress  which  launched  the 
people  upon  a  career  ultimating  in  independence,  von 
Hoist  maintains  that  it  was  a  purely  revolutionary  body, 
but  it  seized  no  power,  and  undertook  only  to  guide  the 
separate  colonies  and  to  recommend  to  them  the  establish- 
ment of  new  governments. 

The  first  impulse  toward  State  government  was  there- 
fore not  from  within  any  colony ;  the  suggestion  came  from 
the  Continental  Congress.  Nor  was  the  originaljdea  one 
of  permanent  separation  from  Great  Britain;  conviction  of 
the  impossibility  of  reconciliation  with  the  mother  country 
was  a  growth.  The  strength  of  the  revolutionists  lay  in 
concert  of  action,  and  it  was  to  the  wisdom  of  all  as  sym- 
bolized in  the  Continental  Congress  that  each  turned. 

With  the  outbreak  of  the  Revolution  the  people  had 
renounced  the  authority  of  Great  Britain,  and  to  avoid  an- 
archy some  kind  of  temporary  government  had  to  be  estab- 
lished. There  sprang  up  simultaneously  in  all  the  colonies 
provincial  congresses  or  conventions,  committees  of  safety 
and  committees  of  correspondence,  the  provincial  congresses 
exercising  all  legislative  powers  and  delegating  executive 
functions  to  the  committees  of  safety.^ 

The   Second   Continental   Congress,   in  answer  to   in- 

'  "History  of  the  People  of  the  United  States,"  McMaster,  vol.  Ill, 
373- 


46  CONSTITUTIONAL    HISTORY 

quiries  from  some  of  the  colonies  (New  Hampshire,  Massa- 
chusetts, South  Carolina,  Virginia)  for  "advice  respecting 
the  taking  up  and  exercising  the  powers  of  civil  govern- 
ment," passed  a  resolution  recommending  that  the  "respec- 
tive assemblies  and  conventions  of  the  United  Colonies 
adopt  such  government  as  should  best  conduce  to  the  happi- 
ness and  safety  of  the  several  colonies  in  particular  and 
America  in  general,"  This  important  resolution  was  passed 
May  ID,  1776.  The  condition  of  the  colony  of  New  York 
at  this  time  was  peculiarly  chaotic ;  the  British  were  in  con- 
trol of  its  chief  city,  the  colonial  assembly  had  been  dis- 
solved and  Governor  Tryon  did  not  consider  it  wise  to 
summon  another;  Tories  and  Royalists  were  in  possession 
of  the  property  of  revolutionists;  and  the  temporary  con- 
gresses or  committees  were  fleeing  from  one  refuge  to  an- 
other. The  infant  government  was  practically  concentrated 
in  the  territory  lying  between  the  Highlands  of  the  Hudson 
and  Lake  George,  Albany  and  Oneida  Lake,  for  the  re- 
mainder of  the  State  was  a  wilderness  peopled  by  red  men.^ 
Only  a  fraction  of  the  State  was  actually  independent,  and 
the  leaders  of  the  revolutionary  movement  instinctively 
turned  to  the  Continental  Congress  for  support.  The  first 
constitution  of  New  York  shows  upon  its  face  that  the 
initiative  for  State  government  came  from  the  Continental 
Congress.^ 

After  receiving  news  of  the  resolution  passed  by  the 
Continental  Congress,  the  Third  Provincial  Congress  of 
New  York,  on  May  31,  1776,  recommended  an  election  of 
deputies  or  delegates  to  a  new  Provincial  Congress.  The 
deputies  chosen  in  conformity  with  this  resolution  consti- 


"  "American  Commonwealths,"  New  York,  Ellis  H.  Roberts,  437. 

'  The  dates,  given  by  McMaster,  of  the  adoption  of  constitutions 
are  as  follows:  1776,  July  2,  New  Jersey;  July  5,  Virginia;  July  15, 
Pennsylvania;  August  14,  Maryland;  September  10,  Delaware;  Decem- 
ber 18,  North  Carolina;  1777,  February  5,  Georgia;  April  20,  New 
York;  1778,  March  19,  South  Carolina;  1780,  March  2,  Massjichysetts ; 
1783,  October  31,  New  Hampshire. 


STATE   OF   NEW   YORK  47 

tuted  the  Fourth  Provincial  Congress,  which  acted  as  the 
First  Constitutional  Convention.  It  was  not  simply  a  con- 
vention to  frame  a  constitution;  it  had  broader  powers;  it 
was  to  ''institute  and  establish"  a  new  government.  It  was 
both  a  convention  and  a  legislature,  and  it  acted  in  both 
capacities — first,  framing  an  organic  law,  and  afterward 
appointing  a  Council  of  Safety,  which  it  invested  with  all 
powers  necessary  for  the  preservation  of  the  State  until  the 
legislature  should  meet. 

The  Fourth  Provincial  Congress,  or  First  Constitutional 
Convention,  the  calling  of  which  so  clearly  shows  that  the 
initiative  for  State  government  came  from  the  Continental 
Congress,  assembled  at  White  Plains  on  July  9,  1776.  The 
Declaration  of  Independence,  absolving  the  colonies  from 
allegiance  to  the  mother  country,  had  been  promulgated 
only  five  days  earlier,  and  the  reception  of  a  copy  of  this 
notable  instrument  was  almost  the  first  official  act  of  the 
body  that  was  to  frame  the  first  constitution  of  the  State. 
All  fourteen  counties  were  represented  by  delegates,  of 
whom  there  were  in  all  one  hundred  and  seven.^  The  busi- 
ness of  the  convention  was  transacted  by  about  one-third 
of  its  number,  for  the  condition  of  the  colony,  the  presence 
of  British  troops  in  New  York  City,  the  royalist  sympathy 
there,  and  the  checkered  success  of  the  cause  of  the  revolu- 
tionists required  various  members  of  the  convention  from 
time  to  time  to  suspend  their  work  as  delegates  and  leave 
the  body.  As  is  usual  in  assemblages  of  such  a  nature,  the 
duty  of  drafting  fell  upon  a  small  minority.  It  is  commonly 
accepted  that  John  Jay,  Gouverneur  Morris  and  Robert 
R.  Livingston  produced  the  draft  that  was  read  to  the  con- 
vention by  one  of  its  secretaries,  and  ultimately  adopted 
with  comparatively  few  alterations  and  revisions.  All  three 
were  young  men — Jay,  the  eldest,  being  thirty-one  years  of 
age— and  all  were  lawyers,  and  familiar  with  the  institu- 

*  Their  names  are  given  in  Lincoln's  "Constitutional  History  of 
New  York,"  vol.  I,  484-486. 


48  CONSTITUTIONAL   HISTORY 

tions  of  the  colony.  The  era  was  pre-eminently  an  age  of 
young  men,  both  in  America  and  in  Europe.  Hamilton  was 
but  twenty-three  when  he  wrote  to  James  Duane  the  cele- 
brated letter  outlining  the  weakness  of  the  Confederation; 
Fox  was  not  twenty-one  when  he  first  sat  in  the  House 
of  Commons;  and  Pitt  at  twenty-six  was  Prime  Minister 
of  England.  Napoleon  early  entered  upon  that  career  which 
made  him  one  of  the  most  vital  forces  in  modern  Europe, 
and  he  retired  to  St.  Helena  when  only  forty-six.  Clay  and 
Calhoun,  the  leading  spirits  of  the  second  war  with  England, 
were  in  the  twenties  when  the  war  commenced.  Clay  hav- 
ing entered  upon  his  congressional  life  before  actually 
reaching  his  majority. 

The  chief  authorship  of  the  Constitution  of  1777  appears 
to  have  belonged  to  Jay.  That  his  views  were  not  fully  ac- 
cepted, that  he  believed  it  faulty  and  incomplete,  and  that 
he  had  proposed  to  suggest  new  clauses,  are  clear  from  his 
own  statements.  Two  things  seem  conclusive :  Jay  drew  the 
celebrated  clause  providing  for  the  Council  of  Appointment, 
while  Robert  R.  Livingston  was  the  author  of  the  original 
provision  for  a  Council  of  Revision. 

Of  the  debates  in  this  convention  there  are  no  records. 
The  sources  of  information  regarding  it,  apart  from  its 
journal  and  occasional  references  to  it  in  the  biographies  of 
its  leading  members,  are  meagre  indeed.  But  great  work 
usually  soon  rises  from  a  personal  to  an  impersonal  plane, 
and  interesting  as  is  the  question  of  authorship,  the  language 
and  effect  of  the  document  far  transcend  this  in  importance. 
The  Constitution  was  finally  approved  on  Sunday,  April  20, 
1777,  after  having  been  discussed  from  day  to  day.  The 
vote  for  it  was  thirty-two  to  one,  the  only  delegate  voting  in 
the  negative  being  Peter  R.  Livingston,  of  Albany.  The 
journal  gives  no  reason  for  his  dissent. 

It  was  the  constitution  of  a  minority  of  the  convention, 
though  accepted  as  the  work  of  all,  for  it  was  impracticable 
to  obtain  the  presence  of  a  majority,  since  some  were  under 


STATE   OF   NEW    YORK  49 

arms  and  others  serving  upon  important  and  sometimes 
secret  missions  during  the  sessions  of  the  convention.  As 
its  work  was  never  ratified  by  the  people,  the  government  of 
the  new  State  was  launched  by  thirty-two  men,  all  of  whom 
were  freeholders. 

The  first  Constitutional  Convention  was  what  Judge 
Jameson  calls  a  "revolutionary  convention,"  inasmuch  as  it 
exercised  governmental  powers.  There  was  no  prior  vote 
of  the  people  authorizing  the  convention;  there  was  an 
election  of  delegates  or  "deputies,"  but  the  election  was  not 
the  consequence  of  a  popular  vote  for  a  convention.  The 
difference  in  the  method  of  initiating  this  convention  and  the 
Convention  of  1821  will  be  apparent  when  that  convention 
comes  to  be  studied.  A  constitutional  convention  should 
originate  in  some  legislative  act  giving  voters  opportunity 
to  decide  whether  it  shall  be  called,  and,  if  their  decision  be 
favorable,  making  provision  for  the  election  of  delegates. 

The  First  Constitution  opens  with  a  brief  summary  of 
events  preceding  the  convention.  It  recites  that  the  usurpa- 
tions of  the  king  and  parliament  had  reduced  the  people  of 
the  colonies  to  the  necessity  of  introducing  governments  by 
congresses  and  committees  as  temporary  expedients;  that 
in  view  of  the  resolution  of  the  Continental  Congress  rec- 
ommending the  colonies  to  organize  new  governments,  the 
congress  of  the  colony  of  New  York  (the  Third  Provincial 
Congress)  had  recommended  to  electors  in  the  several 
counties  either  to  authorize  their  existing  deputies  or  others 
in  their  stead  to  institute  and  establish  such  a  government 
as  they  should  deem  best  calculated  to  secure  the  rights, 
liberties,  and  happiness  of  the  good  people  of  the  colony, 
and  to  continue  in  force  until  a  future  peace  with  Great 
Britain  should  render  the  same  unnecessary;  that  elections 
had  accordingly  been  held  and  new  deputies  been  charged 
with  the  duty  of  instituting  and  establishing  the  new  gov- 
ernment; that  the  delegates  of  the  United  States  in  the  Sec- 
ond Continental  Congress  had  on  July  4,  1776,  published 


50  CONSTITUTIONAL    HISTORY 

the  Declaration  of  Independence;  that  the  reasons  assigned 
by  the  Continental  Congress  for  declaring  the  United  Col- 
onies free  and  independent  States  were  cogent  and  conclu- 
sive, and  were  approved  by  the  convention,  whose  members 
would  at  the  risk  of  life  and  fortune  join  with  the  inhabi- 
tants of  other  colonies  in  supporting  it;  and  the  constitu- 
tion then  proceeded  in  the  name  and  by  the  authority  of 
the  good  people  of  the  State  to  *'ordain,  determine,  and  de- 
clare that  no  authority  should  on  any  pretence  whatever  be 
exercised  over  the  people  or  members  of  this  State  but  such 
as  should  be  derived  from  and  granted  by  them."  This 
democratic  platform  is  not  fully  borne  out  in  the  constitu- 
tion itself.  It  was  "the  declaration,  rather  than  the  realiza- 
tion of  complete  popular  supremacy."  ^ 

The  assembly  was  to  consist  of  seventy  members  elected 
annually  in  the  several  counties  of  the  State,  in  proportions 
fixed  by  the  constitution.  To  be  eligible  to  vote  for  an 
assemblyman  it  was  necessary  that  the  citizen  offering  his 
vote  should  have  resided  in  the  county  six  months  immedi- 
ately preceding  election  day,  and  also  that  he  should  be 
either  a  freeholder  possessing  a  freehold  of  the  value  of 
twenty  pounds  within  the  county  of  his  residence,  or  the 
lessee  of  a  tenement  therein  of  the  yearly  value  of  forty 
shillings.  Any  elector  qualified  to  vote  for  an  assemblyman 
was  eligible  to  the  ofiice.  Freemen  in  the  cities  of  Albany 
and  New  York  having  had  the  right  to  vote  for  assembly- 
men ever  since  1691  were  not  disfranchised.  But  no  one 
might  enjoy  the  elective  franchise  until  he  had  taken  an 
oath  or  affirmation  of  allegiance  to  the  State. 

The  senate  was  to  consist  of  twenty- four  freeholders 
chosen  by  freeholders  alone ;  and  only  such  were  entitled  to 
vote  as  were  possessed  of  freeholds  of  the  value  of  one 
hundred  pounds  over  all  debts  charged  thereon.  Of  the 
first  senators  elected,  six  were  to  be  chosen  by  lot  to  hold 

"^Robert  Ludlow  Fowler,  "Memorial  History  of  the  City  of  New 
York,"  vol.  II,  p.  614. 


STATE   OF   NEW   YORK  51 

office  one  year,  and  a  like  number  were  similarly  chosen  for 
two,  three,  and  four  years,  so  that  one-fourth  of  the  senate 
should  retire  every  year  and  their  successors  be  annually 
chosen.  For  the  election  of  senators,  the  State  was  divided 
into  four  great  districts — the  southern,  the  middle,  the  west- 
ern and  the  eastern — and  the  constitution  assigned  to  each 
district  its  proportion  of  senators.  The  assembly  were  to 
"choose  their  own  speaker,  and  enjoy  the  same  privileges 
and  proceed  in  doing  business  in  like  manner  as  the  assem- 
blies of  the  colony  of  New  York  formerly  did."  A  ma- 
jority of  either  house  was  to  constitute  a  quorum,  and  each 
house  was  made  the  judge  of  the  qualifications  of  its  mem- 
bers. The  senate  was  restricted  to  a  maximum  of  one  hun- 
dred senators,  and  the  assembly  to  a  maximum  of  three 
hundred  members.  Provision  was  made  for  the  taking  of  a 
census  at  the  close  of  the  war  and  at  successive  intervals  of 
seven  years  afterwards,  for  the  purpose  of  apportioning 
representation  in  the  senate  and  the  assembly  according  to 
the  changing  distribution  of  population  throughout  the 
State. 

The  supreme  executive  power  and  authority  of  the  State 
was  vested  in  a  governor,  wJio  was  required  to  be  "a  wise 
and  discreet  freeholder."  He  was  to  be  chosen  every  three 
years  (reduced  to  two  years  by  the  constitution  of  1821), 
or  as  often  as  the  seat  of  government  should  become  vacant, 
by  freeholders  qualified  to  elect  senators,  and  the  election 
was  to  be  held  at  the  same  time  as  the  election  of  assembly- 
men. By  virtue  of  his  office  he  was  general  and  com- 
mander-in-chief of  the  militia  and  admiral  of  the  navy;  he 
might  convene  the  legislature  on  extraordinary  occasions, 
and  prorogue  it  from  time  to  time  for  not  more  than  sixty 
days  in  any  year.  In  these  respects  his  functions  bore  a 
close  resemblance  to  those  of  governors  under  the  crown. 
Impelled  by  the  fear  of  executive  despotism  so  character- 
istic of  that  age,  the  framers  of  the  constitution  took  the 
veto  power  from  the  governor,  and,  upon  the  suggestion  of 


52  CONSTITUTIONAL   HISTORY 

Robert  R.  Livingston,  adopted  an  article  framed  by  him, 
creating  a  council  of  revision.  The  article  as  modified  by 
the  convention  reads  as  follows : 

Article  III :  And  whereas  laws  inconsistent  with  the  spirit  of  this 
constitution  or  with  the  public  good  may  be  hastily  and  unadvisedly 
passed:  Be  it  Ordained,  That  the  Governor,  for  the  time  being,  the 
Chancellor  and  the  Judges  of  the  Supreme  Court,  or  any  two  of  them, 
together  with  the  Governor,  shall  be,  and  hereby  are,  constituted  a 
council  to  revise  all  bills  about  to  be  passed  into  laws  iDy  the  Legisla- 
ture. And  for  that  purpose  shall  assemble  themselves,  from  time  to 
time,  when  the  Legislature  shall  be  convened;  for  which  nevertheless 
they  shall  not  receive  any  salary  or  consideration  under  any  pretence 
whatever.  And  that  all  bills  which  have  passed  the  Senate  and  Assem- 
bly, shall,  before  they  become  laws,  be  presented  to  the  said  council 
for  their  revisal  and  consideration :  and  if  upon  such  revision  and  con- 
sideration, it  should  appear  improper  to  the  said  council  or  a  majority 
of  them,  that  the  said  bill  should  become  a  law  of  this  State,  that  they 
return  the  same,  together  with  their  objections  thereto  in  writing,  to 
the  Senate  or  House  of  Assembly,  in  whichsoever  the  same  shall  have 
originated,  who  shall  enter  the  objections  set  down  by  the  council,  at 
large,  in  their  minutes,  and  proceed  to  reconsider  the  said  bill.  But  if 
after  such  reconsideration,  two-thirds  of  the  said  Senate  or  House  of 
Assembly,  shall,  notwithstanding  the  said  objections,  agree  to  pass  the 
same,  it  shall,  together  with  the  objections,  be  sent  to  the  other  branch 
of  the  Legislature,  where  it  shall  also  be  reconsidered,  and  if  approved 
by  two-thirds  of  the  members  present,  shall  be  a  law. 
And  in  order  to  prevent  any  unnecessary  delays, 
Be  it  further  ordained.  That  if  any  bill  shall  not  be  returned  by 
the  council,  within  ten  days  after  it  shall  have  been  presented,  the  same 
shall  be  a  law,  unless  the  Legislature  shall,  by  their  adjournment,  ren- 
der a  return  of  the  said  bill  within  ten  days  impracticable;  in  which 
case,  the  bill  shall  be  returned  on  the  first  day  of  the  meeting  of  the 
Legislature  after  the  expiration  of  the  said  ten  days. 

The  exercise  of  the  veto  power  was  apparently  not  re- 
stricted to  questions  of  constitutionality.  History  shows,  as 
Justice  Piatt  stated  in  the  Convention  of  1821,  that  the  first 
bill  passed  by  the  senate  and  assembly  under  the  Constitu- 
tion of  1777  was  rejected  by  the  council  of  revision  on  the 
ground  of  inexpediency  alone. 

The  council  of  appointment  consisted  of  the  governor 
and  four  senators,  one  senator  from  each  of  the  senatorial 
districts,  to  be  openly  nominated  and  appointed  by  the  as-. 


STATE   OF   NEW   YORK  53 

sembly  every  year.  Senators  were  not  eligible  to  the  coun- 
cil for  two  years  successively.  A  majority  of  the  body  con- 
stituted a  quorum.  The  governor  had  no  vote,  but  in  the 
event  of  a  tie  had  "a,  casting  voice."  The  intention  of  Jay, 
the  originator  of  the  council  of  appointment,  doubtless  was 
that  the  governor  alone  should  nominate,  but  his  language 
is  obscure.  The  controversy  in  which  this  obscurity  in- 
volved the  State  was  finally  settled  by  the  Constitutional 
Convention  of  1801.  The  whole  power  of  appointment  was 
with  few  exceptions  lodged  by  this  article  in  the  governor 
and  four  senators,  a  majority  of  the  five  enjoying  the  real 
appointing  power.  An  almost  equally  despotic  power  of 
removal  was  placed  in  the  same  hands.  It  is  difficult  to-day 
to  realize  the  extent  of  power  vested  in  the  council.  Few 
officers  were  elective  under  the  first  constitution;  certain 
qualified  electors  voted  for  assemblymen ;  a  more  restricted 
number  voted  for  senators  and  governor ;  and  a  few  ancient 
local  officers  were  ''eligible  by  the  people."  Incumbents  of 
all  other  offices,  civil  and  military,  including  a  large  part 
of  the  judiciary,  sheriffs,  clerks,  coroners,  mayors  and  re- 
corders were  seated  or  deposed  by  vote  of  the  council  of 
appointment.  Almost  all  of  its  appointees  save  the  chan- 
cellor and  the  judges  of  the  supreme  court  held  their  posi- 
tions during  its  pleasure. 

The  judiciary  system  was  very  different  from  that 
which  has  been  familiar  for  the  last  sixty  years.  The  con- 
stitution retained  the  colonial  supreme  court  and  county 
courts,  and  instituted  "a  court  for  the  trial  of  impeachments 
and  the  correction  of  errors."  This  court  was  to  consist  of 
the  president  of  the  senate,  the  senators,  the  chancellor,  the 
judges  of  the  supreme  court,  or  a  majority  of  them — a 
strange  blending  of  legislative  and  judicial  officers  in  the 
highest  judicial  tribunal.^    In  the  event  of  an  appeal  from 


"Under  the  United  States  constitution  and  the  constitutions  of 
most  of  the  States,  judges  have  no  part  in  impeachments  except  as  pre- 
siding officers. 


54  CONSTITUTIONAL   HISTORY 

the  decision  of  the  chancellor,  he  was  required  to  inform 
the  court  ''of  the  reasons  of  his  decree/'  but  had  no  voice  in 
the  final  determination.  When  the  decisions  of  the  judges 
of  the  supreme  court  were  under  review  they,  in  turn,  had 
to  "assign  the  reasons  of  such  their  judgment,"  and  were 
deprived  of  a  vote  for  affirmance  or  reversal.  The  consti- 
tution provided  that  the  chancellor,  the  judges  of  the  su- 
preme court  and  the  first  judge  of  the  county  court  in  every 
county,  should  hold  their  offices  during  good  behavior  or 
until  the  age  of  sixty  years.  This  early  age  limit  forced 
Chancellor  Kent  from  the  bench  at  sixty,  although,  like 
Sophocles,  he  wrote  his  greatest  work  at  a  more  advanced 
age.  The  chancellor  and  judges  were  forbidden  to  hold 
any  other  office  except  that  of  delegate  to  the  General  Con- 
gress ''upon  special  occasions." 

Provision  was  made  for  a  lieutenant-governor  who  was 
to  be  president  of  the  senate  and  to  succeed  to  the  govern- 
or's office  in  case  of  the  latter's  impeachment,  death,  resig- 
nation, or  absence  from  the  State.  A  State  treasurer  was 
to  be  appointed  by  act  of  the  legislature  originating  in  the 
assembly,  no  member  of  either  house  being  eligible  to  the 
office.  Town  clerks,  supervisors,  assessors,  constables,  col- 
lectors and  other  local  officers  theretofore  "eligible  by  the 
people,"  as  the  phrase  ran,  were  to  continue  to  be  elected  by 
popular  vote,  but  in  the  manner  directed  by  act  of  the  legis- 
lature. The  power  of  impeaching  all  officers  of  the  State 
for  mal  and  corrupt  conduct  in  office  was  vested  in  the 
assembly.  Trial  by  jury  was  preserved,  and  a  State  militia 
provided  for.  An  unsuccessful  attempt  was  made  by  Morris 
to  secure  a  clause  recommending  the  early  abolition  of 
negro  slavery  by  the  legislature. 

The  constitution  declared  the  common  law  of  England, 
the  statute  law  of  England  and  Great  Britain,  and  the  acts 
of  the  legislature  of  the  colony  of  New  York  in  force  on 
April  20,  1777,  to  be  the  law  of  the  State.  Grants  of  land 
within  the  commonwealth  by  the  King  of  Great  Britain 


STATE   OF   NEW   YORK  55 

after  October  14,  1775,  were  to  be  void;  and  no  purchase 
of  lands  of  Indians  made  after  October  14,  1775,  was  to 
be  valid  unless  sanctioned  by  the  legislature.  The  legisla- 
ture was  given  authority  to  naturalize  persons  who  should 
abjure  and  renounce  foreign  allegiance.  The  constitution 
assured  to  every  one  the  free  exercise  of  religion.  It  con- 
tained a  peculiar  clause,  which  was  continued  in  the  con- 
stitution of  1822,  but  abandoned  in  1847,  providing  that  as 
ministers  of  the  gospel  and  priests  were  "dedicated  to  the 
service  of  God  and  the  cure  of  souls,  and  ought  not  to  be 
diverted  from  the  great  duties  of  their  function,"  no  min- 
ister of  the  gospel  nor  priest  of  any  denomination  should  be 
eligible  to  any  civil  or  military  office  in  the  State. 

The  famous  Thirty-ninth  Article  of  Magna  Charta  was 
embodied  in  the  first  organic  law  in  the  words :  "No  mem- 
ber of  this  State  shall  be  disfranchised  or  deprived  of  any 
rights  or  privileges  secured  to  subjects  of  this  State  by  this 
constitution,  unless  by  the  law  of  the  land  or  the  judgment 
of  his  peers." 

The  framers  of  the  constitution  undoubtedly  benefited 
by  their  colonial  experience.  Many  of  its  provisions  trace 
their  lineage  to  the  colonial  government.  The  judicial  sys- 
tem and  county  and  town  government  remained  as  they  had 
existed  under  the  crown.  Complete  separation  of  the  legis- 
lative, executive  and  judicial  departments  was  not  efiFected, 
and  this  failure  was  one  of  the  things  most  criticised,  as  it 
was  one  of  the  defects  remedied,  in  the  Convention  of  182 1. 
In  many  respects  the  framers  of  the  constitution  had  to 
venture  into  new  fields  without  precedents  to  guide  them. 
Much  was  to  be  learned  from  sister  States  and  the  Federal 
government  in  the  course  of  a  few  years.  Both  the  council 
of  revision  and  the  council  of  appointment  exercised  potent 
and  sinister  influence  in  the  subsequent  history  of  the  State, 
and  the  desire  to  escape  from  their  tyranny  was  a  leading 
motive  for  the  Convention  of  1821.  As  the  senate  con- 
sisted exclusively  of  freeholders,  as  the  governor  was  to  be 


56  CONSTITUTIONAL   HISTORY 

a  "wise  and  discreet  freeholder,"  as  the  council  of  appoint- 
ment necessarily  consisted  of  land  owners,  the  land  ow^ners 
controlled  the  judiciary  and  government  was  wholly  in  the 
control  of  landed  proprietors. 

Through  the  council  of  revision  the  judiciary  operated 
as  a  further  check  in  the  land  owners'  interest.  The  strug- 
gle for  a  freer  government  which  culminated  in  the  con- 
stitution of  1822,  found  its  chief  obstacle  in  the  council  of 
revision.  Popular  rule  in  the  modern  sense  was  in  fact 
unknown  in  any  of  the  colonies,  and  was  equally  unknown 
in  Great  Britain.  A  partial  removal  of  restrictions  upon 
the  suffrage  was  not  made  in  the  latter  country  until  1832. 

By  an  ordinance  adopted  May  8,  1777,  the  convention 
appointed  a  Council  of  Safety,  investing  it  with  all  powers 
necessary  for  the  preservation  of  the  State  until  a  meeting 
of  the  legislature.  Inasmuch  as  the  council  of  appointment 
could  not  be  appointed  until  the  legislature  had  convened, 
and  as  there  was  urgent  need  for  the  execution  of  the  laws, 
''the  distribution  of  justice"  and  the  holding  of  elections, 
the  convention  appointed  Robert  R.  Livingston,  chancellor ; 
John  Jay,  chief  justice;  Robert  Yates  and  John  Sloss  Ho- 
bart,  puisne  justices  of  the  supreme  court  of  the  State,  and 
Egbert  Benson,  attorney  general.  It  appointed  also  sher- 
iffs, county  clerks  and  county  judges  in  various  counties. 
Elections  were  held  and  the  returns  canvassed  by  the  Coun- 
cil of  Safety,  and  George  Clinton  became  the  first  governor 
of  the  State. 

"The  simple  brevity,  the  'unsuspecting  simplicity'  of  the 
first  constitution  is  in  striking  contrast  to  the  prolixity  of 
some  modern  constitutions,  which  evince  a  misapprehension 
of  the  real  purpose  of  a  written  constitution,  namely,  to 
state  principles  of  government  in  general  terms,  and  not 
with  the  fluctuating  detail  necessarily  incident  to  statutes 
intended  to  meet  shifting  conditions  of  society  or  adminis- 
tration. Under  this  constitution,  despite  its  limitations,  the 
State  had  a  remarkable  development.     It  witnessed  the 


STATE   OF   NEW   YORK  57 

growth  and  enlargement  of  our  unsurpassed  system  of  ju- 
risprudence, moulded  by  the  genius  of  Kent,  with  the  aid 
of  his  distinguished  associates  in  the  judiciary.  Under  it 
were  established  the  university  and  the  common  school ;  and 
colleges,  academies  and  libraries  were  nourished  and  en- 
couraged. The  care  of  the  poor  and  other  unfortunates  was 
provided  for  by  a  system  of  administration  which  in  its 
essential  features  has  continued  to  this  day.  A  system  of 
taxation  was  established,  the  statute  law  was  frequently 
revised;  counties,  cities,  towns  and  villages  were  created; 
internal  administration  adequate  for  the  needs  of  the  time 
was  provided  for  the  different  branches  of  State  and  local 
government;  and  under  this  constitution  was  begun  the 
development  of  a  plan  for  the  construction  of  the  great 
canals  which  have  since  occupied  such  a  large  place  in  public 
affairs.'^  ^ 

The  first  assembly  elected  a  council  of  appointment,  and 
this  council  appointed  Livingston  to  the  chancellorship  and 
made  Jay  chief  justice,  and  Yates  and  Hobart  associate 
justices,  thus  validating  the  appointments  made  by  the  con- 
vention. The  legislature  at  a  subsequent  session,  instead  of 
meeting  as  a  legislative  body,  assembled  as  a  convention, 
and  organized  a  new  Council  of  Safety  to  act  whenever  the 
convention  was  not  in  session,  with  all  the  powers  and  au- 
thorities of  the  former  Council  of  Safety, — the  excuse  be- 
ing that  owing  to  the  state  of  the  times  a  quorum  of  the 
legislature  could  not  be  convened.  Just  as  at  the  outbreak 
of  the  Civil  War  Congress  validated  acts  of  the  President 
of  doubtful  authority,  so  the  proceedings  of  this  Council  of 
Safety  were  ratified  by  the  legislature  of  1778.  The  co- 
lonial legislature  having  been  dissolved  early  in  1775,  no 
legislature  existed  until  1777,  and  no  laws  were  passed  at 
the  session  of  that  year.  In  fact,  no  legislation  took  place 
in  the  colony  for  several  years.    From  the  outbreak  of  the 


'  Lincoln's  "Constitutional  History  of  New  York,"  vol.  I,  594,  595- 


58  CONSTITUTIONAL   HISTORY 

Revolution  in  April,  1775,  until  February  6,  177^,  when  the 
first  State  statute  was  passed,  the  government  was  vested  in 
provincial  congresses  and  Councils  of  Safety. 

One  of  the  first  acts  of  the  new  State  legislature  was 
its  approval  of  the  Articles  of  Confederation.  The  signifi- 
cance of  this  has  only  within  recent  years  come  to  be  under- 
stood. On  June  11,  1776,  Congress,  one  month  after  it  had 
recommended  the  formation  by  the  various  colonies  of  in- 
dependent State  governments,  resolved  that  a  committee 
should  be  appointed  to  prepare  and  digest  a  form  of  a  con- 
federation to  be  entered  into  among  the  colonies.  The 
committee  was  appointed  on  the  following  day.  It  made 
its  report,  which  was  debated  until  November  15,  1777, 
when  the  Articles  were  agreed  to  by  Congress,  which  at  the 
same  time  directed  that  they  should  be  proposed  to  the 
legislatures  of  the  several  States  "to  be  considered,  and,  if 
approved  of  by  them,  they  were  advised  to  authorize  their 
delegates  to  ratify  the  same  in  the  Congress  of  the  United 
States;  which  being  done,  the  same  should  become  conclu- 
sive." 

The  legislature  of  New  York  accordingly,  on  February 
6,  1778,  instructed  her  delegates  to  sign,  and  the  articles 
were  signed  on  behalf  of  the  State  on  August  8,  1778,  by 
James  Duane,  Francis  Lewis,  William  Duer  and  Gouver- 
neur  Morris,  her  representatives  in  the  Congress.  Similar  ac- 
tion was  taken  by  the  legislatures  of  the  other  States.  The 
action  of  the  State  legislatures  was  extra-legal,  as  it  was 
never  authorized  by  the  people  of  the  several  States.  In  no 
State  had  a  legislature  been  elected  for  the  purpose  of  ac- 
ceding to  the  articles,  nor  had  the  question  of  their  accept- 
ance been  submitted  for  popular  approval.  It  was  a  time 
of  revolutionary  government,  and  none  of  the  State  consti- 
tutions was  ratified  by  the  people.  Of  the  failure  of  the 
citizens  of  the  State  or  of  the  Union  to  ratify  the  Articles 
of  Confederation  it  has  been  said :  'Tt  was  the  part  of 
the  people  and  not  of  the  State  legislatures  to  establish  the 


STATE   OF   NEW   YORK  59 

new  government;  and  had  the  people  framed  these  articles, 
the  act,  however  unwise,  would  have  been  perfectly  legal. 
*  *  *  The  whole  system  must,  therefore,  be  considered 
in  our  political  history,  as  a  period  of  interregnum  covering 
the  time  between  the  downfall  of  royal  authority  under 
the  British  constitution  in  1773- 1780,  and  the  final  estab- 
lishment of  the  popular  will  in  its  place  in  1789  under  the 
American  Constitution."  Like  the  Amphictyonic  Council 
and  the  European  confederacies,  with  which  the  statesmen 
of  the  Revolutionary  era  were  so  familiar,  the  new  Con- 
federation was  a  mere  league  of  States,  to  which  the  people 
had  never  been  asked  to  agree.  The  Confederation  was  a 
rope  of  sand,  but  a  genuine  union  entered  into  by  the  people 
of  the  various  States  followed  in  1787.^ 

Most  of  the  thirteen  States  promptly  ratified  the  Articles 
of  Confederation.  A  few  held  out  for  several  years,  Mary- 
land being  the  most  obstinate,  for  her  ratification  was  not 
had  until  March  i,  1781.  Her  reluctance  was  grounded 
mainly  upon  her  unwillingness  to  sacrifice  her  claims  to 
western  territory.  On  December  15,  1778,  she  had  noti- 
fied her  delegates  not  to  agree  to  the  Confederation  until 
these  claims  had  been  settled  upon  an  equitable  basis.  Find- 
ing later  that  persistence  in  her  objections  was  imperilling 
the  cause  of  union,  she  notified  her  representatives  to  ratify 
the  articles.  New  York,  to  her  credit,  set  an  example  of 
generosity  worthy  of  emulation  by  the  other  States.  She 
was  the  first  to  surrender  all  claim  of  title  to  public  lands 
in  the  west.  Had  her  claims  been  established,  her  boun- 
daries would  have  extended  to  the  peninsula  of  Michigan 


*"It  is,  Sir,  the  people's  Constitution,  the  people's  government, 
made  for  the  people,  made  by  the  people,  and  answerable  to  the  people. 
*  *  *  We  are  all  agents  of  the  same  supreme  power,  the  people. 
The  general  government  and  the  State  governments  derive  their  author- 
ity from  the  same  source."  Webster,  The  Reply  to  Hayne.  See  also 
Webster,  ''The  Constitution  not  a  Compact  Between  Sovereign  States," 
in  Reply  to  Calhoun.  These  are  the  two  foremost  of  Webster's  great 
constitutional  expositions. 


6o  CONSTITUTIONAL   HISTORY 

and  the  mouth  of  the  Ohio.  Actuated  by  the  desire  of  effec- 
tuating an  alHance  among  the  States  under  the  articles,  she 
generously  ceded  a  vast  domain,  notwithstanding  the  fact 
that  a  committee  appointed  by  the  Congress  of  the  Con- 
federation had  reported  in  favor  of  her  title.  Virginia  in 
1784,  Massachusetts  in  1785,  and  Connecticut  in  1786  fol- 
lowed New  York's  example;  Connecticut,  however,  re- 
tained as  the  foundation  for  her  school  fund  a  small  tract 
which  subsequently  became  known  as  the  Western  Reserve ; 
and  out  of  these  ceded  lands  was  formed  the  Northwest 
Territory. 

New  York  also  suffered  a  loss  of  territory  on  her 
northeastern  border  by  the  so-called  New  Hampshire 
Grants,  but  it  was  land  to  which  she  really  never  had  pre- 
tensions deserving  to  be  sustained.  These  were  grants  of 
land  by  the  Provincial  Governor  of  New  Hampshire,  Ben- 
nington Wentworth,  who,  between  1749  and  1764,  asserted 
that  she  might  legally  extend  her  western  boundary  to  the 
line  claimed  by  Massachusetts  and  Connecticut,  about 
twenty  miles  east  of  the  Hudson  River. 

By  virtue  of  the  grant  to  the  Duke  of  York  in  1663,  New 
York  claimed  all  land  from  the  Connecticut  River  to  the 
Delaware,  but  the  grant  was  silent  as  to  how  far  north  her 
territory  extended.  Accordingly  Governor  Golden  of  New 
York  issued  grants  covering  the  lands  already  occupied  by 
actual  settlers  under  the  New  Hampshire  government,  and 
a  sharp  dispute  arose  between  the  two  governments. 

New  York  appealed  to  the  king  in  council,  who,  in  July, 
1764,  issued  an  order  declaring  the  western  banks  of  the 
Connecticut,  as  far  north  as  the  forty-fifth  degree  of  north 
latitude,  to  be  the  boundary  line  between  the  provinces. 
Under  this  order  Golden  continued  to  grant  immense  tracts 
of  land,  and  the  former  purchasers  were  required  to  take 
out  new  grants  or  run  the  risk  of  ejectment.  At  first  the 
owners  of  the  New  Hampshire  grants  defended  ejectment 
suits,  but  afterward  made  default  and  resisted  the  execu- 


STATE   OF   NEW   YORK  6i 

tion  of  the  ejectment  writs  by  force.  They  opposed  the 
opening  of  the  royal  courts,  and  through  town  meetings  and 
committees  of  safety  maintained  a  government  independent 
of  New  York.  In  January,  1777,  they  organized  an  inde- 
pendent State  under  the  name  of  New  Connecticut,  which, 
in  June  of  the  same  year,  was  changed  to  Vermont. 

In  June,  1777,  Vermont  petitioned  Congress  for  recog- 
nition as  an  independent  State.  Through  New  York's  in- 
fluence Vermont  for  years  was  kept  out  of  the  Union.  She 
was  actually  admitted  as  a  State  on  March  4,  1791,  under 
act  of  Congress,  approved  February  18,  1791.^ 

Vermont  had  forbidden  negro  slavery  by  her  organic 
law.  Jay  had  unsuccessfully  sought  to  insert  in  the  New 
York  constitution  a  prohibition  upon  negro  servitude. 
Rufus  King,  in  the  House  of  Representatives  in  1785,  had 
offered  a  proposition  to  exclude  slavery  from  the  North- 
west Territory.  One  of  the  earliest  champions  of  the 
cause  of  abolition  was  Aaron  Burr.  According  to  his 
biographer,  Matthew  L.  Davis,  a  bill  was  introduced  in  the 
legislature  on  February  14,  1785,  for  the  gradual  abolition 
of  slavery  within  the  State  of  New  York,  which  provided 
that  all  negroes  born  after  its  passage  should  be  bom  free. 
Burr,  it  seems,  moved  to  amend,  and  proposed  to  insert  a 
provision  that  slavery  should  be  entirely  abolished  after  a 
day  specified ;  but  his  amendment  was  lost. 

As  of  special  interest  to  lawyers,  it  may  be  observed 
that  as  early  as  March  5,  1778,  the  legislature  required  an 
oath  of  allegiance  to  the  new  government  to  be  taken  by 
all  office-holders,  including  all  officers  of  courts.  By  a  law 
enacted  October  9,  1779,  all  attorneys,  solicitors  and  coun- 
selors-at-law  were  summoned  to  produce  "certificates  of 


'The  constitution  of  Vermont,  originally  adopted  in  1777,  but 
slightly  altered  in  1785,  was  far  more  democratic  than  that  of  New 
York,  as  it  accorded  the  right  of  suffrage  to  every  man  of  twenty-one 
years  of  age,  of  quiet  and  peaceable  behavior,  and  a  resident  in  the 
State  for  one  year  preceding  the  election. 


62  CONSTITUTIONAL   HISTORY 

their  attachment  to  the  Liberties  and  Independence  of 
America,"  under  penalty  of  suspension  from  practice;  and 
on  November  20,  1781,  near  the  close  of  the  war,  a  law 
was  passed  providing  for  the  administration  of  a  test  oath, 
and  forbidding  all  members  of  the  profession  who  refused 
to  take  it  from  pursuing  their  vocation.  These  stringent 
measures,  which  must  undoubtedly  have  benefited  lawyers 
able  to  prove  their  loyalty  to  the  cause  of  the  revolution- 
ists, remained  in  force  until  April  4,  1786,  when  all  dis- 
abilities upon  Tory  practitioners  were  removed.  Yet  for  a 
number  of  years  the  favored  members  of  the  profession 
were  able  to  enjoy  its  emoluments  with  little  fear  of  com- 
petition. 

The  Articles  of  Confederation  were  ratified  by  the  sev- 
eral States  without  popular  consent ;  not  so  the  Constitution 
of  the  United  States.  Conventions  were  called  in  the  dif- 
ferent States  to  pass  upon  the  question  of  its  ratification. 
In  the  State  of  New  York  delegates  were  elected  by  the 
people  and  assembled  in  convention  in  Poughkeepsie  on 
June  17,  1788.  To  counteract  the  opposition  to  ratifica- 
tion of  the  anti-federalists  under  Governor  George  Clin- 
ton's leadership  required  all  Hamilton's  genius,  skill  and 
energy.  The  convention  was  so  closely  divided  that  ratifi- 
cation was  obtained  by  the  narrow  margin  of  three  votes. 
When  the  convention  reached  this  decision  the  new  union 
was  an  established  fact,  for  ten  States  had  already  approved 
the  constitution  and  ratification  by  nine  only  was  needed  to 
carry  the  new  government  out  of  the  realm  of  theory. 
New  York  therefore  had  to  decide  whether  to  enter  an 
actual  union  or  remain  outside  of  it. 

The  anti-federalists  had  at  first  proposed  a  conditional 
ratification,  their  terms  being  the  incorporation  in  the  new 
constitution  of  a  series  of  amendments  constituting  a  Bill 
of  Rights.  When  it  became  evident  that  the  new  govern- 
ment would  be  a  success  even  without  New  York,  the  dele- 
gates decided  to  vote  for  ratification  and  to  change  their 


STATE    OF    NEW    YORK  ^    63 

conditional  acceptance  into  expression  of  a  hope  that  their 
suggestions  would  be  adopted.  Two  of  the  proposals  which 
emanated  from  New  York  were  never  accepted.  The  first 
ten  amendments  embody  suggestions  from  several  of  the 
States,  and  upon  the  resolution  of  the  first  Congress  (Sep- 
tember 25,  1789),  these  were  submitted  to  the  members  of 
the  union  and  were  ratified  by  a  sufficient  number  of  States 
on  or  before  December  15,  1791.  New  York,  the  eleventh 
State  to  enter  the  union,  was  the  eighth  to  ratify  the  ten 
amendments. 

The  Colonial  Laws  of  New  York  which,  according  to 
the  constitution  of  1777,  were  made  an  integral  part  of 
the  common  law  of  the  State,  acquired  new  importance  and 
underwent  various  revisions.  The  earliest  statutes  of  the 
State  were  revised  and  collected  by  direction  of  the  legisla- 
ture, and  were  published  in  1789  by  the  revisers,  Samuel 
Jones  and  Richard  Varick.  A  new  revision  was  under- 
taken in  1 80 1  by  Justice  James  Kent  and  Justice  Jacob  Rad- 
cliff.  In  18 1 3  a  revision  was  made  by  William  P.  Van 
Ness  and  John  Wood  worth,  known  as  the  Revision  of  18 13. 
This  revision,  w^hich  is  in  two  volumes,  contains  certain  im- 
portant ordinances  of  the  Governor  and  Council  of  the 
Colony,  including  the  Charter  of  Liberties  and  Privileges 
of  October  30,  1683,  and  also  the  Articles  of  Capitulation 
signed  by  Nicolls  on  behalf  of  the  Duke  of  York  upon  the 
surrender  of  the  colony  to  England.  None  of  these  re- 
visions appears  to  have  been  complete. 

Shortly  after  peace  with  Great  Britain,  the  State  of  New 
York  created  a  comprehensive  plan  for  the  education  of  its 
people.  In  1784  Governor  Clinton  invited  the  attention  of 
the  legislature  to  this  subject,  and  the  legislature,  in  re- 
sponse, established  a  board  of  regents  for  the  University 
of  New  York,  and  changed  the  name  of  King's  College  to 
Columbia,  which  by  this  act  was  also  erected  into  a  univer- 
sity. The  members  of  the  board  of  regents  were  patrons  of 
learning,  and  they,  in  turn,  persistently  advocated  the  organ- 


64      '         CONSTITUTIONAL   HISTORY 

ization  of  a  common  school  system.  In  1789  the  State  took 
the  first  real  step  toward  the  establishment  of  education 
upon  a  substantial  foundation.  The  legislation  of  that  year 
was  followed,  in  1795,  by  an  act  appropriating  annually 
for  five  years,  out  of  the  public  revenues  of  the  State,  the 
sum  of  fifty  thousand  dollars,  to  encourage  and  maintain 
common  schools  in  the  several  cities  and  towns  of  the  State, 
and  requiring  supervisors  to  raise  by  tax  in  each  town  a 
sum  equal  to  one-half  of  its  proportion  of  the  moneys  ap- 
propriated by  the  State.  Commissioners  and  trustees  were 
directed  to  be  appointed,  and  were  required  to  make  annual 
reports  to  the  Secretary  of  State.  This  legislation  expiring 
in  1800,  Governor  Morgan  Lewis  again  brought  up  the  sub- 
ject in  his  message  to  the  legislature  of  1805.  A  law  was 
thereupon  enacted  by  which  the  proceeds  of  500,000  acres 
of  public  land  were  to  be  erected  into  a  fund  to  be  accumu- 
lated until  its  annual  income  should  attain  the  sum  of  fifty 
thousand  dollars,  when  the  income  was  to  be  applied  to  the 
support  of  the  schools.  This  fund  was  enlarged  by  vari- 
ous appropriations,  until  in  18 19  it  had  reached  the  sum  of 
$1,200,000.  In  June,  18 12,  the  legislature  provided  for  the 
election  in  town  meetings  by  the  citizens  of  each  town,  of 
three  commissioners  of  education  to  manage  the  concerns 
of  the  schools  within  the  town,  and  six  persons,  who,  to- 
gether with  the  commissioners,  should  be  inspectors  of 
schools,  the  functions  of  the  inspectors  being  to  examine 
teachers,  visit  the  schools  and  advise  the  trustees.  The 
school  commissioners  were  authorized  to  divide  their  towns 
into  school  districts,  and  the  people  of  the  districts  were 
authorized  to  elect  trustees.  This  ancient  system  is  still  in 
force  throughout  the  rural  portions  of  the  State.  By  the 
constitution  of  1822  the  common  school  fund  was  rendered 
inviolable  and  directed  to  be  devoted  in  perpetuity  to  the 
advancement  of  common  schools.  By  degrees  the  produc- 
tive capital  of  the  fund  was  augmented,  so  that  by  the  year 
1842  it  amounted  to  $1,968,000. 


STATE    OF    NEW    YORK  65 

Except  as  modified  in  1801,  the  constitution  of  1777  re- 
mained in  force  for  upward  of  forty-four  years.  The 
commonwealth  grew  and  prospered  in  this  interval  to  an 
unexampled  and  unexpected  extent.  The  chief  defects  in 
the  constitution  were  the  creation  of  the  council  of  appoint- 
ment and  of  the  council  of  revision.  And  its  oligarchic 
form  of  government  was  unsuited  to  a  democratic  State. 
The  circumstances  which  led  to  the  Convention  of  182 1 
will  form  the  subject  of  the  next  two  chapters. 


66  CONSTITUTIONAL   HISTORY 


CHAPTER    IV 

THE      COUNCIL      OF     APPOINTMENT HAMILTON'S      VIEW 

GREAT  BODY  OF  OFFICE-HOLDERS,  ITS  APPOINTEES STAR- 
CHAMBER    POWER FEDERALIST    PARTY    FIRST    TO    ABUSE 

THE    POWER CONTROVERSY    BETWEEN    GOVERNOR    CLIN- 
TON   AND    COUNCIL    IN     1 794 CONTROVERSY    BETWEEN 

GOVERNOR  JAY  AND  COUNCIL  IN  180O CONSTITUTIONAL 

CONVENTION    OF    180I ITS    CONSTRUCTION   OF   ARTICLE 

XXIII EFFECTS RISE   OF  DE  WITT   CLINTON   TO   POWER 

ABUSES  OF  THE  PATRONAGE  SYSTEM HAMMOND  AND 

THE   COUNCIL GENERAL  DESIRE  IN    182O   FOR   ITS   ABO- 
LITION. 

The  organization  of  the  council  of  appointment  was, 
according  to  Hammond,  one  of  the  two  anomahes  in  the 
constitution  of  1777,  the  other  being  the  institution  of  the 
council  of  revision.^  ^     Until  the  rise  of  distinct  political 


^In  an  elaborate  monograph  entitled  ''DeWitt  Clinton  and  the 
Origin  of  the  Spoils  System  in  New  York,"  Columbia  University  Press, 
1907,  Mr.  Howard  Lee  McBain,  Ph.D.,  has  undertaken  a  defense  of 
Clinton's  policy  in  the  distribution  of  offices  in  New  York  in  1801.  Mr. 
McBain  has  made  a  critical  and  searching  examination  of  the  manu- 
script minutes  of  the  council  of  appointment  up  to  1801,  and  his  essay, 
which  is  a  valuable  contribution  to  the  literature  bearing  upon  the  coun- 
cil, is  based  upon  a  study  of  these  documents. 

*In  an  article  entitled  "The  Council  of  Appointment  in  New 
York,"  7  P.  S.  Q.,  80,  Professor  J.  M.  Gitterman  maintains  that  the 
contests  of  the  provincial  period  turned  largely  upon  the  question  of 
the  appointing  power.  Since  the  royal  officials  were  to  be  paid  from 
the  proceeds  of  the  provincial  taxes,  the  New  York  assembly  accord- 
ingly strove  to  gain  the  right  of  nominating  all  those  officials  whom 
the  province  had  to  support,  i.  e.,  all  except  the  royal  governor.  The 
people  came  to  regard  appointment  and  taxation  as  correlative  func- 
tions of  government  and  aimed  at  the  control  of  both.    They  desired 


STATE   OF   NEW   YORK  (iy 

parties  after  the  ratification  of  the  Federal  Constitution,  the 
council  of  appointment  seems  to  have  exercised  its  preroga- 
tives without  arousing  much  public  censure,  although  there 
are  intimations  from  the  pen  of  Hamilton  in  The  Federalist 
that  its  action  in  the  earliest  days  was  subject  to  just  criti- 
cism. During  the  deliberations  of  the  Federal  Convention 
of  1787,  the  plan  of  a  council  of  appointment  was  urged 
upon  that  body,^  which  wisely  decided  to  give  exclusive 
power  of  appointment  to  the  President,  subject  to  confirma- 
tion by  the  Senate.  Hamilton,  in  one  of  his  papers  in  The 
Federalist,^  in  contrasting  the  superiority  of  the  method  of 
appointments  proposed  in  the  Federal  Constitution  over  that 
of  New  York,  analyzed  with  keenness  the  defects  of  the 
State  system,  which  had  then  been  in  existence  for  a  dec- 
ade. After  adverting  to  the  fact  that  the  blame  of  a  bad 
nomination  would  fall  upon  the  President  alone,  and  the 
censure  of  rejecting  a  good  one  would  lie  with  the  senate, 
and  that  both  the  executive,  for  nominating,  and  the  senate. 


to  secure  the  appointing  power,  and  as  a  first  step  they  demanded  the 
right  of  voting  and  apportioning  the  taxes  and  supplies.  After  the 
English  revolution  of  1688,  freeholders  of  the  province  obtained  a 
representative  assembly.  The  appointing  power  was  left  with  the  gov- 
ernor, who  was  responsible  only  to  the  crown.  But  the  granting  of 
the  taxes  from  which  the  salaries  and  other  governmental  expenses 
were  to  be  paid  was  in  the  power  of  the  assembly;  and  this  body  con- 
stantly refused  to  grant  supplies  till  its  grievances  were  redressed. 
The  governor,  treated  with  more  or  less  indifference  by  the  home  au- 
thorities, had  to  contend  with  the  hostility  of  the  French  and  the  never- 
ending  alarms  aroused  by  the  Indian  confederations.  By  the  time  that 
George  III.  ascended  the  throne,  a  conflict  of  nearly  a  century  had 
wrested  the  power  of  appointment  from  the  executive  and  had  given 
it  to  the  assembly.  Those  contests  were  fresh  in  the  minds  of  the 
members  of  the  convention,  and  had  created  a  strong  prejudice  against 
one-man  power,  as  is  evidenced  by  the  decision  which  was  reached  as 
regards  the  treasurer.  It  was  determined  that  this  officer  should  be 
elected  by  the  assembly  and  senate,  independently  of  the  governor. 
The  same  distrust  of  the  governor  underlies  all  the  plans  proposed  for 
the  bestowal  of  the  State  patronage. 

'Dougherty — "Power  of  Federal  Judiciary  over  Legislation,"  51, 

53,  57. 

*No.  Ixxvii;  see  also  Ixix  and  Ixx. 


68  CONSTITUTIONAL   HISTORY 

for  approving,  a  bad  nomination,  would  incur  in  different 
degrees  opprobrium  and  disgrace,  Hamilton  declared  that 
the  reverse  characterized  the  manner  of  appointments  in 
New  York,  The  council  was  a  "small  body,  shut  up  in  a 
private  apartment,  impenetrable  to  the  public  eye."  The 
governor  "claimed  the  right  of  nomination  upon  the 
strength  of  some  ambiguous  expressions  in  the  constitu- 
tion," but  it  could  not  be  publicly  known  whether  his  claim 
was  admitted  or  opposed,  for  the  proceedings  were  secret. 
An  unbounded  field  for  cabal  and  intrigue  lay  open,  and 
all  idea  of  responsibility  was  lost.  Every  council,  however 
constituted,  was  a  conclave  in  which  sinister  influences 
would  have  full  swing.  These  evils  would  not  be  remedied 
by  a  frequent  change  in  its  personnel,  for  this  would  involve 
the  mischiefs  of  a  mutable  administration  in  their  full  ex- 
tent. Such  a  council  would  also  be  more  liable  to  execu- 
tive influence  than  the  senate,  because  smaller  in  number 
and  less  immediately  under  public  inspection. 

As  few  officers  were  elective,  the  great  body  of  office- 
holders were  appointees  of  the  council.  Almost  none,  with 
the  exception  of  the  chancellor,  the  judges  of  the  Supreme 
Court,  and  the  first  judge  of  each  county  court,  enjoyed  im- 
munity from  removal  during  good  behavior.  The  commis- 
sions of  the  county  judges  ran  for  only  three  years,  and 
unless  these  were  renewed,  partisanship  found  its  oppor- 
tunities in  the  council.  With  the  election  of  every  new  as- 
sembly, especially  after  a  change  of  party,  every  existing 
council  was  liable  to  deposition,  and  the  business  of  its  suc- 
cessor was  the  distribution  of  the  entire  patronage  of  the 
State  among  political  friends  and  retainers.  Security  of 
tenure  during  efficient  administration  was  probably  the 
principle  upon  which  Governor  George  Clinton  and  his  suc- 
cessor Governor  Jay  acted,  as  a  rule.  The  same  precept 
was  enunciated  by  Washington  and  by  Jefferson  in  respect 
to  Federal  appointments  and  removals.  But  as  party  an- 
tagonisms increased  in  intensity  and  violence,  the  entire 


STATE   OF   NEW   YORK  69 

list  of  civil  and  military  appointments  in  the  State  became 
the  instrument  for  rewarding  political  loyalty.  By  degrees 
the  ambition  of  political  leaders  and  the  cupidity  of  their 
followers  evolved  the  notion  that  no  office  not  immune  from 
change  by  constitutional  fiat  could  be  held  longer  than  a 
year.  The  prerogative  of  nominating  was  too  vast  to  be 
conceded  to  the  governor  without  a  struggle;  hence  the 
pretensions  of  the  four  senators  in  the  council  that  they  had 
the  same  right  as  he  to  nominate;  hence,  also,  the  construc- 
tion placed  upon  article  XXIII  of  the  constitution  by  the 
convention  which  assembled  in  1801. 

It  was  the  star  chamber  power  of  the  council  of  appoint- 
ment that  has  rendered  the  politics  of  this  State  unfathom- 
able to  citizens  of  other  commonwealths.  The  system  ac- 
counts for  the  rise  to  important  station  of  men  of  mediocre 
abilities,  and  the  singular  absence  from  political  office  of 
men  of  commanding  talents.  New  York  has  produced  many 
statesmen  of  more  than  average  faculty,  yet  few  intellects 
of  the  highest  political  order.  Even  her  most  conspicuous 
political  figures  have  had  their  vision  narrowed  by  thoughts 
of  patronage.  Hamilton,  who  was  not  native  born,  is  the 
only  political  genius  in  the  whole  history  of  the  State. 

By  the  irony  of  Fate,  the  Federal  party,  which  installed 
the  truer  system  of  appointments  in  the  national  constitu- 
tion, was  the  party  which  first  prostituted  the  State  ap- 
pointive system.  It  was  while  Governor  Clinton  was  serving 
his  seventh  term  that  the  earliest  open  breach  between  the 
governor  and  the  council  occurred,  and  it  arose  over  an  ap- 
pointment to  the  Supreme  Court.  The  council  of  1777  had 
appointed  three  judges;  later  the  appointment  of  a  fourth 
judge  was  voted ;  the  place  was  offered  to  Aaron  Burr,  who? 
refused  to  accept  it,  and  Morgan  Lewis  was  appointed  in  his 
stead.^    In  1793  the  question  of  creating  a  fifth  place  upon 


■^  "The  real  work  of  the  council  began  in  1778.  At  first,  its 
powers  were  exercised  in  a  very  conservative  spirit.  During  the  con- 
tinuance of  the  struggle  with  England  it  was,  of  course,  necessary  to 


70  CONSTITUTIONAL   HISTORY 

that  bench  was  publicly  discussed.  The  ardent  wish  of  the 
New  York  Federalists  was  to  see  Egbert  Benson,  a  lawyer 
of  distinction  and  a  scholar  of  no  inconsiderable  attain- 
ments, seated  in  that  tribunal.  Clinton  and  the  members  of 
the  council  not  being  in  accord  as  to  the  person  to  be  pre- 
ferred to  the  office,  an  opportunity  successfully  to  urge  their 
candidate  came  to  the  Federalists  in  1794,  when  their  party 
secured  ascendency  in  the  new  assembly  and  returned  Fed- 
eralist senators  from  the  southern,  eastern  and  western  dis- 
tricts. Josiah  Ogden  Hoffman,  an  assemblyman  from  New 
York,  delivering  a  'Violent  philippic  against  the  existing 
council"  for  its  failure  to  appoint  a  fifth  judge,  moved  that 
the  house  proceed  to  choose  a  council  of  appointment.  He 
was  warmly  supported  by  Ambrose  Spencer,  then  a  member 
of  the  Federalist  party,  but  the  motion  was  strenuously  re- 
sisted on  the  ground  that  the  existing  council  had  not  been  in 
office  an  entire  year,  and  that  a  new  council  could  not  be 
elected  before  the  close  of  its  term.  It  seems,  according  to 
the  minutes  of  the  council  of  1793,  that,  while  the  appoint- 
ment of  a  fifth  judge  was  under  consideration,  differences 
of  opinion  had  developed  as  to  whether  an  additional  judge 
was  needed.  Hoffman's  motion  was  promptly  carried,  and 
General  Philip  Schuyler,  Hitchcock,  Strong  and  Hopkins 
were  elected  members  of  the  incoming  council,  the  first  three 
pronounced  Federalists.  Schuyler  was  almost  violent  in  his 
antipathy  to  Governor  Clinton,  whose  use  of  the  appointing 
power  he  had  often  censured,  and  owing,  perhaps,  to  the 
intimate  relations  between  him  and  Hamilton,  they  were  in 
accord  in  the  opinion  expressed  by  Hamilton  in  The  Federal- 
ist, that  scandalous  appointments  to  important  offices  had 


restrict  the  offices  to  the  friends  of  independence;  but  it  was  not  cus- 
tomary to  employ  the  patronage  of  the  State  to  strengthen  any  par- 
ticular group  of  patriots  or  to  increase  the  political  following  of  any 
particular  leader.  The  proscription  of  all  opponents  was  not  yet  the 
rule.  Nor  was  it  yet  perceived  that  the  principle  of  rotation  in  office 
might  be  so  applied  as  greatly  to  increase  the  number  of  rewards  avail- 
able for  friends."    J.  M.  Gitterman,  id. 


STATE   OF   NEW   YORK  71 

been  made  under  Clinton.  When  the  council  convened, 
Benson  was  nominated  for  the  supreme  court  by  one  of  the 
Federalist  members  of  the  body,  and  all  the  Federalists  in  it 
voted  for^  him,  despite  Clinton's  remonstrance  that  he  as 
governor  alone  had  the  power  of  nomination. 

In  the  following  October  the  governor  published  a  pro- 
test against  the  action  of  the  majority  of  the  council  in  the 
Albany  Gazette,  which  printed  on  the  same  day  the  reply  of 
the  Federalist  members  of  that  body.  After  contending  that 
the  exclusive  power  of  appointment  was  vested  in  him,  the 
governor  argued  that  the  council  had  not  the  power,  which 
the  majority  further  claimed,  of  displacing  any  officer  or  of 
determining  upon  the  number  necessary  for  the  proper  exe- 
cution of  the  laws — that  these  were  matters  confided  ex- 
clusively to  the  executive.  Although  the  constitution  seemed 
in  many  cases  to  refer  the  continuance  of  an  office  to  the 
pleasure  of  the  council,  *'by  this  was  not  intended  a  capri- 
cious arbitrary  pleasure,  but  a  sound  discretion  to  be  exer- 
cised for  the  promotion  of  the  public  good."  The  contrary 
practice  would  be  pernicious  and  its  consequence  would  be 
'*'to  deprive  men  of  their  offices  because  they  have  too  much 
independence  of  spirit  to  support  measures  they  suppose 
injurious  to  the  community,  and  might  induce  others  from 
undue  attachment  to  office  to  sacrifice  their  integrity  to  im- 
proper considerations."  The  reply  of  the  Federalist  mem- 
bers of  the  council  was,  in  effect,  an  attempt  to  establish 
that  the  governor's  practice  had  not  conformed  with  the 
high  precepts  enunciated  in  his  protest. 

Governor  Clinton,  whose  term  of  office  was  about  to 
expire,  declined  to  stand  for  re-election.  The  Republicans 
nominated  Chief  Justice  Robert  Yates  for  the  governorship ; 
the  Federalists,  John  Jay;  and  at  the  April  election  in  1795, 
the  latter  was  elected  by  a  large  majority  of  the  votes  of  the 
freeholders  of  the  State.  No  quarrel  arose  between  Jay  and 
the  members  of  the  council  of  appointment  until  1801,  for 
the  councils  chosen  in  1796,  1797  and  1798  were  largely, 


y2  CONSTITUTIONAL   HISTORY 

if  not  entirely,  composed  of  Federalists.  Despite  Jay's  re- 
election in  the  spring  of  1798,  the  Republican  party  was  in- 
creasing in  power  and  influence  in  the  State.  It  secured 
large  accessions  in  the  assembly,  especially  from  the  city 
of  New  York,  which  returned,  among  others,  Aaron  Burr 
and  John  Swartwout.  By  one  of  those  curious  revolutions 
not  uncommon  in  politics,  the  election  of  1799  resulted  un- 
favorably to  the  Republicans.  Mainly  through  Burr's  ef- 
forts the  Republican  defeat  of  1799  was  converted  into  a 
Republican  triumph  in  the  following  year,  when  the  party 
secured  a  majority  of  twenty-five  in  the  assembly  and  con- 
trol of  the  incoming  council  of  appointment.  As  the  legisla- 
ture then  chose  presidential  electors  and  the  Federalists  had 
a  majority  of  only  six  in  the  senate,  the  Republicans  were 
able  to  secure  electors  of  their  party.  Republican  success 
in  New  York  meant  the  success  of  the  party  throughout  the 
nation.  The  city  of  New  York,  which  in  the  preceding  year 
had  given  a  Federalist  majority  of  nine  hundred,  elected  the 
entire  Republican  assembly  ticket,  and  the  party  was  suc- 
cessful in  three  of  the  four  great  senatorial  districts  of  the 
State.  Upon  the  convening  of  the  legislature  in  November, 
a  resolution  was  offered  in  the  assembly  for  the  immediate 
election  of  a  new  council  of  appointment.  This  resolution 
was  vehemently  opposed  by  the  Federalists  upon  the  identi- 
cal ground  upon  which  Hoffman's  resolution  to  elect  a  new 
council  had  been  resisted  in  1794 — that  the  old  council  had 
not  been  in  existence  for  a  year.  The  position  of  the  two 
parties  was  the  reverse  of  what  it  had  been  in  1794.  The 
governor  was  now  a  Federalist,  the  dominant  party  in  the 
legislature  Republican,  the  existing  council  Federalist; 
whereas  in  1794  the  governor  was  Republican,  the  legisla- 
ture controlled  by  Federalists,  and  the  council  Republican. 
The  only  difference  lay  in  the  fact  that  after  election  the 
Republicans  announced  their  intention  to  fill  with  party 
friends  offices  which  had  relation  to  party  politics,  and  to 
distribute  the  remaining  places  among  members  of  the  two 


STATE   OF   NEW   YORK  73 

parties  in  the  proportion  which  the  vote  for  their  candidates 
justified. 

The  chief  exponent  of  this  policy,  DeWitt  Clinton, 
nephew  of  the  former  governor,  was  coming  to  be  recog- 
nized as  the  dominant  factor  in  the  politics  of  the  State. 
The  resolution  to  elect  a  new  council  was  adopted  by  the 
assembly,  and  a  new  council  immediately  chosen,  the  mem- 
bers of  which  were  DeWitt  Clinton,  Ambrose  Spencer,  Rob- 
ert Roseboom  and  John  Sanders,  all,  with  Sanders'  excep- 
tion. Republicans.  The  new  council  met  on  February  11, 
1 80 1.  Clinton  and  Spencer  were  at  this  time  in  accord  in 
their  political  beliefs  and  policies,  and  the  alliance  between 
them  continued  unbroken  until  18 12.  Roseboom  was  a 
plastic  instrument  in  their  hands,  so  that  they  were  readily 
able  to  control  the  council  and  make  appointments  and  re- 
movals at  will.  Their  determination  to  seize  the  power  of 
nomination  occasioned  immediate  hostility  between  them 
and  Governor  Jay,  similar  to  that  which  had  taken  place  be- 
tween Governor  Clinton  and  the  council  of  appointment 
in  1794. 

War  between  the  governor  and  the  council  at  once  broke 
out.  Jay  nominated  Jesse  Thompson  for  sheriff  of  Dutchess 
county;  a  majority  of  the  council  refused  to  concur.  He 
made  seven  other  nominations  for  the  same  office,  all  of 
which  were  rejected  by  the  council.  Some  few  of  his  nomi- 
nations for  other  places  received  approval.  At  an  adjourned 
meeting  the  governor  urged  Benjamin  Jackson  for  the  office 
of  sheriff  of  Orange  county,  but  without  success.  Other 
nominations  of  his  also  failed,  whereupon  DeWitt  Clinton, 
claiming  the  right  of  nomination  to  reside  in  each  member 
of  the  council,  proposed  John  Blake,  Jr.,  for  sheriff  of 
Orange  county.  The  governor  declined  to  put  the  question 
upon  this  nomination,  but  nominated  John  Nicholson  in- 
stead. A  majority  of  the  council  refused  to  vote  upon  his 
nomination,  and  the  governor  refused  to  put  the  question 
upon  Blake's  nomination,  as  he  deemed  the  executive  pos- 


74  CONSTITUTIONAL   HISTORY 

sessed  of  exclusive  power  to  nominate.  In  view  of  the  dead- 
lock he  declared  that  he  would  have  to  consider  what  course 
of  conduct  to  follow  and  requested  time  for  the  purpose. 
Whereupon  the  council  was  adjourned.  Acting  upon  his 
constitutional  prerogative,  the  governor  never  reconvened 
it.  Two  days  later  he  sent  a  special  message  to  both  houses 
of  the  legislature,  in  which,  setting  forth  the  differences  be- 
tween himself  and  the  Republican  majority  of  the  council, 
and  recalling  that  in  his  first  speech  after  election  he  had 
urged  the  importance  of  legislation  declaratory  of  the  pow- 
ers of  the  governor  as  president  of  the  council,  he  again  re- 
quested the  houses  to  determine  upon  the  true  construction 
of  the  twenty-third  article  of  the  constitution.  His  message 
asserted  his  belief  that  the  constitution  vested  in  the  gov- 
ernor exclusive  right  of  nomination,  although  he  acknowl- 
edged that  the  claim  of  a  concurrent  right  in  other  members 
had  been  made  in  1794.  The  Republican  assembly  decided 
(and  perhaps  the  governor  anticipated  the  decision)  that 
the  legislature  had  no  constitutional  right  to  interpret  any 
provision  of  the  organic  law.  The  Federalist  senate,  on  the 
contrary,  resolved  that  the  legislature  had  this  power.  Fail- 
ing in  his  appeal  to  the  legislature.  Jay  asked  the  chancellor 
and  judges  of  the  supreme  court  for  an  opinion,  which  they 
declined  to  give,  as  not  within  the  scope  of  their  judicial 
duties. 

Jay  next  sought  legislation  which  would  permit  a  suit 
for  the  determination  of  the  question,  but  the  Republican 
assembly  defeated  a  bill  introduced  for  that  purpose.  A  new 
election  for  the  governorship  was  to  take  place  in  April 
(1801),  and  as  a  result  of  the  antagonism  between  the  gov- 
ernor and  the  other  members  of  the  council,  and  of  the  con- 
flicting views  developed  in  the  two  houses,  the  constitutional 
issue  was  injected  into  the  campaign,  which  was  conducted 
with  much  asperity  of  temper  on  both  sides.  Spencer  was, 
perhaps,  the  recipient  of  the  bitterest  criticism.  In  1794, 
as  a  Federalist  member  of  the  assembly,  he  had  supported 


STATE   OF   NEW   YORK  75 

Hoffman's  motion  for  the  election  of  a  new  council.  In 
1797  he  was  one  of  the  Federalist  council  of  appointment. 
In  the  next  year,  for  some  inscrutable  reason,  he  left  the 
party  and  became  a  Republican — a  change  that  caused  him 
to  be  attacked  as  the  ''political  chameleon." 

The  governor's  efforts  to  secure  from  the  legislature  and 
the  judiciary  an  interpretation  of  the  constitution  evoked 
a  challenge  of  his  claim  from  the  Federalist  members  of  the 
council.  In  a  communication  to  the  assembly  they  gave 
their  version  of  the  controversy,  presenting  lengthy  argu- 
ments to  support  the  concurrent  power  of  nomination.  Un- 
less the  wheels  of  government  were  to  be  completely  blocked, 
a  constitutional  convention  became  inevitable,  for  no  au- 
thority but  the  people,  the  assumed  makers  of  the  constitu- 
tion, existed  to  say  where  the  right  to  nominate  was  vested. 
On  April  6,  1801,  a  law  was  passed  recommending  the  citi- 
zens of  the  State  to  elect  by  ballot  delegates  to  meet  in 
convention  *'for  the  purpose  of  considering  the  parts  of  the 
constitution  of  this  State  respecting  the  number  of  senators 
and  members  of  assembly  in  this  State,  and  with  power  to 
reduce  and  limit  the  number  of  them  as  the  said  convention 
might  deem  proper;  and  also  for  the  purpose  of  considering 
and  determining  the  true  construction  of  the  twenty-third 
article  of  the  constitution  of  this  State  relative  to  the  right 
of  nomination  to  office."  The  bill  did  not  provide  for  a 
prior  vote  by  the  electorate  upon  the  question  whether  a 
convention  ought  to  be  called. 

The  constitution  of  1777  contained  no  provision  for  its 
own  amendment.  Before  calling  upon  voters  to  elect  dele- 
gates to  a  convention,  the  legislature  in  strictness  should 
have  given  them  opportunity  to  decide  whether  they  wished 
to  summon  it.  This  was  the  course  insisted  upon  by  the 
council  of  revision  in  1820  and  ultimately  adopted  by  the 
legislature  in  March,  182 1.  But  in  1801  the  council  of  re- 
vision seems  to  have  made  no  objection  to  the  bill  for  the 
election  of  delegates.     Nor  did  the  law  for  the  election 


76  CONSTITUTIONAL   HISTORY 

of  delegates  require  ratification  by  voters  of  the  proceedings 
of  the  convention.  Reapportionment  of  members  of  the 
senate  and  assembly  had  become  important  in  view  of 
changes  in  the  population  of  the  State;  hence  reapportion- 
ment and  the  construction  of  article  XXIII  were  the  only 
subjects  to  be  considered  by  delegates. 

The  convention  met  at  Albany  on  October  13,  and 
elected  as  its  president,  Aaron  Burr,  then  vice-president  of 
the  United  States.  Burr  had  been  chosen  a  delegate  from 
Orange  county,  although  not  a  resident  of  that  county.  The 
sessions  of  the  convention  lasted  fifteen  days.  Two  ques- 
tions only  were  submitted  to  it,  and  as  Burr  in  a  letter  to 
his  daughter  Theodosia  said,  its  proceedings  might  have 
been  concluded  in  about  six  hours.  The  reapportionment  of 
legislative  members  was  easily  accomplished,  and  the  result 
of  the  election  of  delegates  foreshadowed  the  interpretation 
that  would  be  put  upon  article  XXIII  of  the  constitution ;  in 
fact,  the  practice  of  both  parties  would  have  made  it  incon- 
sistent for  either  to  sustain  Governor  Jay's  contention. 

By  a  large  majority,  86  to  14,  the  convention  voted  that 
by  the  true  construction  of  the  twenty-third  article  "the 
right  to  nominate  all  officers  other  than  those  who,  by  the 
constitution,  are  directed  to  be  otherwise  appointed,  is  vested 
concurrently  in  the  person  administering  the  government  of 
this  state  for  the  time  being,  and  in  each  of  the  members  of 
the  Council  of  Appointment."  ^     Hammond  declares  "the 


"The  constitutional  resolution  of  1801  is  perhaps  the  only  case 
of  the  exercise  of  judicial  power  by  the  people  of  a  State  in  convention 
assembled.  Here  the  people  in  their  function  of  the  highest  court 
ordained  and  declared  the  construction  of  the  constitution.  This  fol- 
lowed by  a  few  years  the  ratification  of  the  eleventh  amendment  to  the 
Federal  constitution,  adopted  to  nullify  the  decision  of  the  Supreme 
Court  of  the  United  States  in  Chisholm  v.  Georgia,  which  upheld  the 
right  of  an  individual  citizen  of  one  State  to  sue  another  State.  The 
amendment,  however,  declares  that  "the  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State  or  by  citizens  or  subjects  of  any  foreign  State."    This 


STATE   OF   NEW   YORK  yy 

unanimity"  to  have  been  "somewhat  extraordinary."  The 
vote  was  reached  after  little  debate.  John  V.  Henry,  a 
Federalist  and  a  distinguished  lawyer,  perhaps  in  disgust  at 
his  own  recent  removal  from  the  comptroUership,  argued 
in  support  of  the  exclusive  right  of  the  governor  to  nomi- 
nate. William  P.  Van  Ness  and  Daniel  D.  Tompkins 
recorded  themselves  in  favor  of  the  governor's  view. 
Tompkins,  who  afterward  sat  in  the  Convention  of  182 1, 
thus  referred  in  that  body  to  his  vote  in  1801 :  "The  con- 
vention of  1 80 1  was  assembled  to  sanction  a  violent  con- 
struction of  the  constitution."  To  him,  he  added,  it  was  a 
proud  triumph,  that  at  the  age  of  twenty-six  he  had  stood 
alone  against  the  then  dominant  party.  The  vicious  theory, 
although  not  yet  embodied  in  the  epigrammatic  maxim  "to 
the  victors  belong  the  spoils,"  was  too  deeply  rooted  in  prac- 
tice to  prevent  the  successful  party  from  using  all  agencies 
of  government  to  reward  its  supporters  and  punish  enemies 
and  deserters.  The  power  could  not  be  employed  with 
scientific  precision  unless  the  right  to  nominate  belonged 
to  every  member  of  the  council.  This  construction  of  the 
constitution  was  soon  to  be  used  against  one  of  its  foremost 
advocates  with  telling  effect.  Burr,  then  in  the  zenith  of  his 
fame  and  influence,  by  giving  his  sanction  to  it,  simply 
sealed  the  power  of  DeWitt  Clinton  to  humiliate  and  crush 
him,  as  he  soon  afterward  learned.  His  overthrow  was 
accomplished  by  Clinton  with  the  aid  of  Livingston,  the  ex- 
chancellor,  who  had  begun  his  political  career  as  a  Federal- 
ist, but  ceased,  after  1797,  to  associate  with  the  Federal 
party.  The  council  of  appointment  which  Jay  had  dis- 
solved in  February,  1801,  was  summoned  together  by  his 
successor,  Governor  George  Clinton,  in  August  of  the  same 
year,  and  this  council  not  only  deposed  practically  all  Fed- 


amendment  had  been  proposed  by  Congress  to  the  legislatures  of  the 
several  States  on  September  5,  1794,  and  after  its  ratification  by  three- 
fourths  of  the  States,  became  part  of  the  constitution  on  January  8, 
1798. 


78  CONSTITUTIONAL   HISTORY 

eralists,  but  in  parcelling  out  the  offices  ignored  the  Burrite 
faction  altogether.  "Not  a  single  appointment  of  the  least 
importance,"  says  Hammond,  "was  conferred  on  the  known 
friends  of  Colonel  Burr."  The  treatment  meted  out  to 
Burr  aroused  the  wrath  of  his  brilliant  lieutenant,  William 
P.  Van  Ness,  who,  under  the  name  "Aristides,"  denounced 
the  Clintons.  "With  astonishment,"  he  wrote,  "it  was  ob- 
served that  no  man,  however  virtuous,  however  unspotted 
his  life  or  his  fame,  could  be  advanced  to  the  most  unimpor- 
tant appointment,  unless  he  would  submit  to  abandon  all 
intercourse  with  Mr.  Burr,  vow  opposition  to  his  elevation, 
and  like  a  feudal  vassal,  pledge  his  personal  services  to 
traduce  his  character  and  circulate  slander." 

The  subsequent  history  of  this  despotic  appointive  body 
was  what  might  have  been  expected  after  the  construction 
put  upon  article  XXIII  by  the  convention  of  1801.  It  be- 
came a  pitiless  political  machine.  Morgan  Lewis,  who 
owed  his  elevation  to  the  governorship  (1804)  to  a  com- 
bination made  by  the  Clintonians  and  the  Livingston  fam- 
ily, of  which  he  was  a  member,  against  Burr,  was  soon 
afterward  marked  for  proscription.  Clinton,  who  was  a 
member  of  the  council  of  1806,  induced  it  to  remove  Matur- 
in  Livingston,  the  governor's  brother-in-law,  from  the  of- 
fice of  recorder  of  the  City  of  New  York,  and  to  appoint 
Pierre  C.  Van  Wyck  in  his  stead.  Thomas  Tillotson  was 
deposed  from  the  office  of  secretary  of  state,  and  his  place 
given  to  Elisha  Jenkins.  These  removals  and  appoint- 
ments were  not  effected  without  protests  from  the  governor 
and  another  member  of  the  council,  Huntington.  Accord- 
ing to  Hammond,  the  chief  authority  for  this  period,  the 
war  upon  the  governor  became  open  and  undisguised,  and 
it  was  conducted  with  extreme  virulence.  "In  all  the 
minor  appointments,  such  as  sheriffs,  county  clerks,  surro- 
gates, county  judges,  and  justices  of  the  peace,  those  can- 
didates were  preferred  by  the  council,  who  were  known  to 
be  hostile  to  the  re-election  of  Governor  Lewis."     Lewis, 


State  of  new  york  79 

in  turn,  after  his  re-election,  employed  the  council  to  pun- 
ish the  younger  Clinton,  who  had  previously  resigned  his 
office  of  senator  at  Washington  to  become  mayor  of  New 
York  City.*^  The  council  of  1807  removed  him  from  the 
mayoralty,  appointed  Colonel  Marinus  Willett  mayor,  re- 
moved Recorder  Van  Wyck,  and  reappointed  Maturin  Liv- 
ingston; removed  Jenkins  from  the  office  of  secretary  of 
state,  and  reappointed  Dr.  Tillotson.  All  obnoxious  Clin- 
tonians  lost  their  positions.  In  1804  Lewis  had  made  one 
appointment  for  which  he  is  entitled  to  lasting  gratitude — 
that  of  James  Kent  to  the  chief  justiceship  of  the  Supreme 
Court,  which  he  himself  had  left  for  the  governorship, 
Daniel  D.  Tompkins,  then  a  congressman,  was  given  Kenf  s 
vacant  seat  of  associate  judge.  In  less  than  three  years  he 
was  to  replace  Lewis,  whose  success  was  temporary.  The 
election  of  Tompkins  as  governor  was  a  triumph  for  Clin- 
ton; it  restored  to  the  Clintonian  Republicans  control  of 
the  council,  which  promptly  proceeded  to  the  performance 
of  its  expected  work,  removing  Tillotson,  reinstating  Jen- 
kins, making  Clinton  again  mayor,  reappointing  Van  Wyck 
recorder  in  place  of  Maturin  Livingston,  and  appointing 
Sylvanus  Miller,  Clinton's  personal  friend,  to  the  surrogate- 
ship  of  New  York  County,  from  which  the  Lewis  council 
had  removed  him  to  make  way  for  Ogden  Edwards. 
Among  the  appointments  made  by  this  Clintonian  council 
was  that  of  Martin  Van  Buren  to  the  office  of  surrogate  of 
his  native  county,  Columbia.  Woodworth,  notwithstanding 
his  Republicanism,  was  removed  from  the  attorney-general- 
ship because  he  had  supported  the  cause  of  Governor  Lewis. 
"This  council  proceeded  to  send  new  general  commissions 


'  Upon  the  resignation  of  Edward  Livingston  from  the  mayor- 
alty of  New  York  City  in  the  summer  of  1803  Morgan  Lewis,  then 
chief  justice  of  the  Supreme  Court,  was  a  rival  candidate  for  the  office 
against  DeWitt  Clinton.  The  importance  at  that  time  of  the  mayoralty 
could  not  be  better  illustrated,  for  it  was  sought  by  a  United  States 
senator  on  the  one  hand  and  the  chief  justice  of  the  Supreme  Court  on 
thfi  other, 


8o  CONSTITUTIONAL   HISTORY 

of  the  peace  into  many  of  the  counties,  and  in  the  course  of 
a  few  months  brought  about  almost  an  entire  change  of 
persons  holding  civil  offices  in  the  State."  ^ 

DeWitt  Clinton  had  become  the  arbiter  of  politics  in 
the  State.  The  victorious  Clintonians  turned  their  eyes  to 
the  national  capital  with  the  ambition  of  making  the  vice- 
president,  George  Clinton,  Democratic  nominee  for  presi- 
dent, but  in  this  they  were  foiled  by  the  Virginia  dynasty. 
In  1809  the  Federalist  party  regained  control  of  the  as- 
sembly, largely  because  of  public  excitement  against  the 
embargo.  The  new  council  removed  Republican  officials 
and  substituted  Federalists  in  their  place.  Its  policy  was 
"thorough";  but  in  the  following  year,  when  the  Repub- 
licans re-elected  Tompkins  and  carried  the  assembly,  the 
council  of  that  year  at  once  undid  the  acts  of  its  immedi- 
ate predecessor  by  removing  Federalists  from  office  and 
restoring  previous  Republican  incumbents.  DeWitt  Clin- 
ton again  became  mayor  of  New  York  City,  and,  remark- 
able as  it  may  seem  in  these  days,  soon  afterward  became 
lieutenant-governor  as  well.  The  council  of  1812  ^  was 
Clintonian,  and  the  x\lbany  Register  soon  began  to  urge  the 
claims  of  DeWitt  Clinton  for  the  presidency.  He  was 
nominated  by  a  legislative  caucus  in  May,  18 12,  but  in  the 
canvass  of  presidential  votes  had  only  eighty-nine  electoral 
votes  as  against  Madison's  one  hundred  and  twenty-eight. 
In  the  year  181 3  the  council  of  appointment  had  a  strongly 
Federalist  complexion.  Its  removals  of  Republicans  and 
appointments  of  Federalists  were  general  in  offices  of  great 
and  also  small  importance  throughout  the  State.  Abraham 
Van  Vechten  succeeded  Thomas  Addis  Emmet  as  attorney- 
general,  and  Josiah  Ogden  Hoffman  succeeded  Van  Wyck 
as  recorder  of  New  York.  The  council  of  1814  also  was 
Federalist.  This  council  is  entitled  to  the  credit  of  placing 
Kent  in  the  chancellorship  (Lansing,  the  previous  incum- 

*  Hammond,  "History  of  Political  Parties  in  New  York,"  I,  263. 
"  Vice-President  George  Clinton  died  at  Washington,  April  20,  1812. 


STATE   OF   NEW   YORK  8i 

bent  of  the  office,  having  reached  the  age  Hmit),  and  of 
making  Smith  Thompson  chief  justice.  It  appointed  Gen- 
eral Piatt,  the  party's  recent  unsuccessful  candidate  for 
governor,  justice  of  the  supreme  court  to  fill  the  vacancy 
created  by  Smith  Thompson's  appointment  to  Kent's  for- 
mer place.  In  1815  the  Republican  party  again  came  into 
power  in  the  State;  Van  Buren,  who  had  been  deposed  by 
the  council  of  18 13  from  the  surrogateship  of  Columbia 
county,  was  made  attorney-general,  as  Van  Vechten's  suc- 
cessor. The  long-continued  alliance  between  DeWitt  Clin- 
ton and  Ambrose  Spencer  was  disrupted;  CHnton  was  re- 
moved from  the  mayoralty  of  New  York,  and  his  political 
fortunes  were  soon  afterward  at  their  lowest  ebb ;  yet,  in  a 
few  years,  he  was  raised  to  the  governorship  and  the  ap- 
pointing power  was  again  used  to  punish  his  enemies.  But 
before  the  close  of  his  administration  the  people  of  the 
State  had  become  disgusted  with  the  council  and  had  de- 
cided to  aboHsh  it. 

The  council  of  18 16  made  comparatively  few  removals, 
as  its  friends  were  in  possession  of  the  more  valuable  of- 
fices. The  council  of  181 7,  which  was  friendly  to  Clinton, 
who  in  the  spring  of  that  year  had  been  elected  governor, 
removed  the  Tammany  men  from  office.  ^^  Its  most  signal 
act  was  the  deposition  of  the  secretary  of  state,  Robert  Til- 
lotson,  son  of  the  Dr.  Tillotson  who  had  several  times  been 
exalted  to  the  office  and  several  times  removed  from  it,  and 
the  appointment  of  Dr.  Charles  D.  Cooper  in  the  younger 
Tillotson's  place,  although  no  objection  could  be  made 
to  him  save  that  he  had  opposed  Clinton's  aspirations. 

Hammond,  the  historian,  was  himself  a  member  of  the 
council  of  1 8 18.     The  two  leading  factors  in  the  senate 

"The  members  o£  this  council  were,  with  the  exception  of 
Bowne,  the  New  York  City  member,  close  friends  of  the  governor.  At 
a  meeting  of  the  council,  held  August  27,  it  was  suggested  that  the 
governor  was  in  a  position  to  punish  office  holders  who  had  been  inim- 
ical to  his  interests,  but  to  these  importunings  it  has  been  said  he 
turned  a  deaf  ear. 


82  CONSTITUTIONAL   HISTORY 

consisted  of  the  governor's  supporters,  and  the  Bucktail 
party,  which  was  opposed  to  him.  Van  Buren,  the  master 
spirit  of  the  anti-Clintonians,  while  feeling  a  deep  interest 
in  the  selection  of  the  council,  recognized,  says  Hammond, 
the  danger  of  having  it  so  constituted  as  to  be  avowedly 
hostile  to  the  governor,  for  ^'in  that  case  the  public  would 
impute  all  the  errors  which  might  be  committed,  to  the 
council,  and  judge  of  the  executive  by  his  speeches."  A 
council  favorable  to  the  governor  was  not  to  be  appointed, 
but  it  was  "desirable  to  form  a  council  which  the  governor 
could  not  control  but  for  whose  acts  the  public  would  hold 
him  responsible.  In  other  words,  Mr.  Van  Buren  wished 
to  create  a  council  which  should  be  really  hostile  to  the 
governor.  Partly  by  management  and  partly  by  accident, 
a  council  of  the  character  last  described  was  actually 
chosen." 

In  accordance  with  custom,  the  members  of  the  council 
were  selected  by  a  caucus  of  Republicans  from  each  of  the 
four  senatorial  districts.  A  coalition  of  Republicans  in 
Rensselaer  county  demanded  the  removal  of  William  L. 
Marcy,  then  recorder  of  Troy;  he  was  deposed,  and  Dr. 
Cooper  was  removed  from  his  office  of  secretary  of  state. 
Hammond  himself  was  adverse  to  Marcy 's  removal  and  to 
the  proposed  removal  of  Van  Buren  from  the  attorney- 
generalship,  but  for  party  reasons  afterward  voted  for 
Marcy's  deposition.  In  this  year  a  bill  for  a  constitutional 
convention  was  introduced  in  the  assembly  by  Ogden  Ed- 
wards of  New  York,  with  the  idea  of  procuring  the  coun- 
cil's abolition.  "All  men,"  says  Hammond,  "had  become 
disgusted  with  the  appointing  power  *  *  *  ^nd  so 
universal  was  the  opinion  that  a  change  ought  to  be  made 
that  I  was  satisfied  that  the  Council  of  Appointment  could 
not  much  longer  form  a  part  of  our  governmental  machin- 
ery." 

By  the  year  1819  the  breach  between  the  Clinton  and 
the  Bucktail  factions  had  become  impassable.    From  that 


STATE   OF   NEW    YORK  83 

time  they  were  known  as  distinct  political  parties,  the  op- 
position of  the  Bucktails  to  Governor  Clinton  being  os- 
tensibly rested  upon  dislike  of  his  ideas  upon  internal  im- 
provements. The  council  of  181 9  made  appointments  al- 
most exclusively  from  the  governor's  friends,  many  of 
whom  were  Federalists,  the  Bucktails  being  almost  uni- 
versally proscribed.  In  this  year  Van  Buren  lost  his  post 
of  attorney  general,  and  Thomas  J.  Oakley,  then  the  Fed- 
eralist leader  in  the  assembly,  was  elevated  to  his  place. 
Peter  A.  Jay,  son  of  John  Jay,  was  installed  as  recorder  of 
New  York  City  in  Richard  Riker's  stead. 

The  council  of  1820,  elected  by  a  Republican  assembly 
overwhelmingly  favorable  to  the  summoning  of  a  consti- 
tutional convention,  was  in  the  hands  of  the  governor's  po- 
litical enemies.  Roger  Skinner,  one  of  its  most  active  mem- 
bers, was  a  Federal  judge  of  the  northern  district  of  New 
York,  holding  simultaneously  three  distinct  offices — Federal 
judge,  State  senator,^^  and  member  of  the  great  appointing 
power.  So  influential  was  he  that  the  council  came  to  be 
known  as  Skinner's  Council.  Of  its  remorseless  enforce- 
ment of  the  doctrine  that  "to  the  victors  belong  the  spoils," 
Hammond  gives  the  following  account : 

"The  Council  met  on  the  12th  of  January,  and  on  the  first  day  of 
their  meeting  they  ordered  the  issuing  of  eleven  writs  of  supersedeas 
to  as  many  sheriffs  of  counties.  They  removed  Archibald  Mclntyre 
from  the  office  of  comptroller.  The  comptroller,  since  Mr.  Mclntyre 
had  been  the  incumbent  of  the  office,  had  been  considered  rather  as  a 
working  man  than  as  a  politician.  Neither  the  Council  of  1807,  1810^ 
1813,  nor  1814,  although  Mr.  Mclntyre  was  decidedly  hostile  to  them, 
had  manifested  the  least  disposition  to  remove  him.  They  were  aware 
that  it  required  time  and  experience  to  become  well  acquainted  with  the 
financial  concerns  of  this  great  State,  and  with  the  best  and  most  proper 
mode  of  managing  them;  and  they  treated  Mr.  Mclntyre  as  before 
stated,  rather  as  a  laborer  employed  by  the  State  than  as  a  political 
office  holder.  Besides,  all  men  admitted  that  he  was  an  accurate  and 
able  accountant,  and  an  honest  man.  His  removal  produced  great  ex- 
citement and  its  effect  upon  the  community  would  have  been  greater 


The  constitution  of  1822  put  a  stop  to  this  evil  (§11,  Art.  I). 


84  CONSTITUTIONAL   HISTORY 

had  not  the  Council  made  a  judicious  selection  of  a  successor.  That 
successor  was  John  Savage,  the  son  of  the  venerated  Senator  Edward 
Savage,  and  late  chief  justice  of  this  State.     *    *    * 

"The  Council  also,  on  the  same  day,  removed  Thomas  J.  Oakley 
from  the  office  of  attorney-general.  This  was  anticipated.  Samuel  A. 
Talcott,"  then  a  young  lawyer,  who  resided  in  Utica,  was  appointed  in 
his  place.  Mr.  Talcott  had  not  then  acquired  much  eminence  at  the 
bar,  but  he  soon  developed  talents  in  his  profession  of  the  highest 
order.  This  appointment  was  considered  as  peculiarly  Mr.  Van 
Buren's;  and  the  amiable  traits  in  Mr.  Talcott's  character  and  his 
splendid  legal  talents  fully  justified  Mr.  Van  Buren  in  taking  a  warm 
interest  in  his  favor.  Mr.  Talcott  had  been  a  federalist,  but  with  many 
others  of  that  party  had  opposed  the  election  of  Mr.  Qinton ;  and  Mr. 
Van  Buren,  no  doubt  felt,  that  good  policy  required  that  some  dis- 
tinguished mark  of  attention  and  respect  should  be  bestowed  on  some 
of  the  individuals  who  had  been  ranked  among  the  federalists.     *    *    * 

"The  Council  did  not  confine  their  operation,  even  on  the  first  day 
of  their  meeting,  to  the  removal  of  civil  officers,  but  superseded  several 
gentlemen  holding  military  commissions.  Heretofore,  this  class  of 
office  holders,  in  consequence  of  the  unproductiveness  of  their  offices, 
had,  during  all  the  political  revolutions,  remained  undisturbed.  *  *  * 
Stephen  Allen  was  appointed  mayor  of  New  York,  in  lieu  of  Cad- 
wallader  D.  Colden,  and  Peter  A.  Jay  was  removed  from  the  office  of 
recorder,  to  which  Richard  Riker  was  appointed. 

"After  making  these  changes  in  the  great  officers  of  the  State,  the 

Council  proceeded  into  every  county  and  removed  all,  or  nearly  all  the 

sheriffs,  clerks,  surrogates,  judges  of  the  courts  of  common  pleas,  and 

justices  of  the  peace,  who  were  known  or  suspected  to  be  politically 

opposed  to  them. 

***** 

"But  there  is  one  act  of  this  Council,  which,  in  my  judgment, 
admits  of  no  reasonable  apology.  The  act  to  which  I  refer,  was  the 
removal  of  Gideon  Hawley  from  the  office  of  superintendent  of  com- 
mon schools.  Mr.  Hawley  had,  by  great  skill  and  labor,  formed  our 
common  school  system.  AH  who  know  him,  and  he  is  now,  and  was 
then  generally  known,  admit  not  only  his  fitness,  but  his  peculiar  fitness 
for  that  office.  On  the  able  and  faithful  discharge  of  his  duties  de- 
pended, not  the  temporary  success  of  this  or  that  party,  but  in  a  con- 
siderable degree  the  weal  or  woe  of  the  rising  generation.  The  Coun- 
cil removed  him  and  appointed  in  his  place  Welcome  Esleeck,  Esq.,  a 
mere  collecting  attorney,  who  had  scarce  any  of  the  requisite  qualifica- 
tions of  a  superintendent  of  schools.  So  gross  was  this  outrage,  that 
the  political  friends  of  the  Council  in  the  legislature  would  not  submit 
to  it.     Gen.  Root  soon  after  the  appointment  of  Mr.  Esleeck  for,  as 


"For  interesting  pictures  of  Talcott,  Marcy  and  Benjamin  F. 
Butler,  see  Alexander,  "A  Political  History  of  the  State  of  New  York," 
I,  289-292. 


STATE   OF   NEW   YORK  85 

was  well  understood,  the  mere  purpose  of  getting  rid  of  him,  intro- 
duced a  bill,  or  attached  a  clause  to  some  bill  on  its  passage  in  the 
assembly,  enacting  that  the  secretary  of  state  should,  ex-officio,  be  the 
superintendent  of  common  schools,  which  soon  passed  through  both 
houses  with  acclamation." 

The  number  of  offices  under  the  control  of  the  council 
in  1820  bore  a  substantial  ratio  to  the  voting  population. 
It  was  about  one  appointment  for  every  two  hundred  per- 
sons in  the  State.^^  The  life  of  a  council  was  determined 
by  each  new  assembly,  and  after  each  member  of  the  coun- 
cil became  as  potential  as  the  governor  himself,  it  discov- 
ered how  it  might  create  new  offices  and  increase  the  num- 
ber of  office  holders,  as  well  as  depose  those  whose  tenures 
were  under  the  constitution  to  be  at  its  pleasure.  A  posi- 
tion in  the  council  was  of  transcendent  consequence  after 
each  member  could  nominate.  Log-rolling  became  inevi- 
table. The  struggle  between  parties  was  concentrated  in 
maneuvers  to  control  the  council.  Bitter  personal  animosi- 
ties and  factional  feuds  were  engendered.  Party  ties  were 
lightly  appreciated,  with  the  temptation  to  change  of  alle- 
giance. The  inferior  judiciary  was  degraded.  The  man- 
hood of  every  holder  of  a  commission  from  the  State  gov- 
ernment was  undermined  and  his  independence  weakened. 
The  council  was  unwisely  conceived,  it  had  abused  its  pow- 
ers, and  was  perverted  to  evil  purposes.  And  in  conse- 
quence its  abolition  was  voted  in  the  Convention  of  1821 
without  a  single  dissent. 


"The  total  vote  for  governor  in  1820  was  93,434;  the  total  num- 
ber of  offices  in  the  gift  of  the  council  was  14,950.  The  population  in 
1800  was  484,065;  in  1820,  1,372,812.  (See  McBain,  "DeWitt  Clinton 
and  The  Spoils  System,"  79.) 


86  CONSTITUTIONAL   HISTORY 


CHAPTER   V 

COUNCIL    OF    REVISION PERCENTAGE    OF    VETOED    BILLS — 

COUNCIL  RAN  COUNTER  TO  PUBLIC  SENTIMENT  IN   l8l2- 

1814 ITS  VETOES  OF  WAR  MEASURES ITS  VETO  OF  THE 

BILL  OF  NOVEMBER  20,  182O,  FOR  A  CONSTITUTIONAL 
CONVENTION— HISTORY  OF  THE  MOVEMENT  FOR  A  CON- 
VENTION  ACT  OF  MARCH  1 3,  1 82 1 ELECTION  OF  DELE- 
GATES^  AND  ANALYSIS   OF   VOTE. 

The  conviction  was  often  expressed  in  the  Convention 
of  1 82 1  that  in  the  council  of  revision  there  was  an  im- 
proper union  of  legislative  and  judicial  powers.  It  was  not 
the  percentage  of  the  bills  which  it  vetoed,  for  this  was 
small  ^  when  compared  with  the  liberal  use  of  the  veto 
power  by  modern  governors  and  presidents,  but  their  char- 
acter, which  made  it  the  subject  of  public  odium.  It  had 
seemed  to  put  itself  deliberately  in  the  way  of  public  opin- 
ion, and  public  sentiment  would  not  endure  its  opposition. 
On  several  occasions  when  the  legislature  favored  an  en- 
largement of  the  judicial  force  (the  most  urgent  occasion 
being  in  1812,  during  the  controversy  over  the  charter  of 
the  Bank  of  America),  and  it  was  apparent  that  the  council 
of  appointment  was  ready  to  respond  to  the  legislative  and 
popular  wish,  the  council  of  revision  interposed  its  veto  of 
bills  providing  salaries  for  the  additional  judges.     While 


*The  abstract  of  vetoed  bills  presented  by  Justice  Piatt  to  the 
convention  of  1821  showed  that  128  out  of  6590  bills  passed  by  the  two 
houses  had  been  vetoed  by  the  council,  eighty-three  as  repugnant  to  the 
constitution,  forty-five  as  inconsistent  with  the  public  good.  The  coun- 
cil and  the  legislature  seem  oftenest  to  have  come  in  conflict  in  the 
year  1785,  sixteen  bills  having  been  vetoed  in  the  course  of  the  session, 
ten  as  unconstitutional,  and  six  as  inconsistent  with  the  public  good. 


STATE   OF   NEW   YORK  87 

the  council  of  appointment  could  appoint,  it  required  legis- 
lation to  fix  the  salary  of  new  appointees;  hence,  appoint- 
ment without  legislation  for  salaries  would  have  been  nuga- 
tory. 

In  two  other  instances  the  council  of  revision  had 
placed  itself  squarely  in  hostility  to  public  sentiment.  This 
had  happened  during  the  War  of  18 12  and  in  the  year  1820. 
The  second  war  with  Great  Britain  was  fought  largely  upon 
the  sea,  and  privateers  did  much  to  bring  it  to  a  triumphant 
close.  The  enormous  losses  caused  to  British  commerce  by 
American  ships,  especially  those  sailing  under  letters  of 
marque,  led  to  a  remonstrance  by  the  merchants  of  England 
to  Parliament  against  the  further  continuance  of  the  war, 
and  eventually  to  the  peace  of  18 14.  The  legislature  of 
New  York  proposed  in  that  year  to  encourage  privateering 
by  authorizing  any  five  or  more  persons  desirous  of  form- 
ing a  company  for  the  purpose  of  annoying  the  enemy  and 
its  commerce  by  means  of  private  armed  vessels,  to  organ- 
ize themselves  as  a  corporation,  issue  corporate  stock,  and 
enjoy  ordinary  corporate  powers.  The  bill  actually  became 
a  law  on  October  21,  18 14 — too  late  in  the  war  to  be  fruit- 
ful of  result.  When  it  came  before  the  council  of  revision, 
vigorous  objections  to  it  were  formulated  by  Chancellor 
Kent.  Privateering,  he  declared,  was  merely  tolerated;  it 
was  not  approved  either  by  the  maxims  of  public  law  or  the 
opinion  of  enlightened  jurists.  "The  practice  was  liable 
to  great  disorder,  and  as  its  professed  object  was  the  plun- 
dering of  private  property  for  private  gain,  its  tendency  was 
to  impair  the  public  morals,  to  weaken  the  sense  of  right 
and  wrong,  and  to  nourish  a  spirit  of  lawless  ferocity."  He 
objected  to  the  measure  on  the  further  ground  that  it  was 
an  unnecessary  interference  with  the  power  of  Congress  "to 
grant  letters  of  marque  and  reprisal  and  make  rules  con- 
cerning captures  on  land  and  water."  The  whole  subject 
of  the  bill,  he  maintained,  properly  fell  under  the  jurisdic- 
tion of  that  body. 


88  CONSTITUTIONAL    HISTORY 

Kent's  repugnance  to  the  bill  was  in  accord  with  ad- 
vanced sentiment.  In  1856  the  leading  powers  of  Christen- 
dom, with  the  exception  of  Russia  and  the  United  States, 
agreed  to  the  proposal  of  the  Paris  convention  that  pri- 
vateering should  be  treated  as  unlawful  and  be  abolished.^ 
But  Kent  was  a  Federalist,  and  the  Federal  party  in  New 
York,  or  at  least  some  of  its  leaders,  were  believed  secretly 
to  cherish  the  unpatriotic  sentiments  supposed  to  be  enter- 
tained by  the  Federalists  of  New  England.  The  bill  had 
behind  it  the  earnest  support  of  a  pronounced  majority  in 
the  State  legislature,  and  was  zealously  urged  by  Governor 
Tompkins.  Samuel  Young,  under  the  signature  "Juris 
Consultus,"  attempted  to  refute  the  chancellor's  objections 
in  a  series  of  articles  published  in  the  Albany  Argus.  The 
chancellor,  in  turn,  replied  to  Young,  and  Van  Buren,  with 
his  usual  ability,  came  to  Young's  support  in  a  series  of 
papers  under  the  title  "Amicus  Juris  Consultus."  The 
council  had  also  made  objections  to  efforts  of  the  houses  to 
raise  a  volunteer  force  for  the  assistance  of  the  government. 
To  a  legislature  and  people  bent  upon  sustaining  the  gov- 
ernment at  Washington,  the  objections  of  the  council 
seemed  to  savor  of  disloyalty.  It  is  strong  testimony  to  the 
high  respect  in  which  the  chancellor  was  held  as  a  man  and 
a  jurist  that  these  vetoes  did  not  bring  him  into  public 
disesteem. 

In  1 8 14  the  legislature  passed  a  bill  to  aid  in  the  appre- 
hension of  deserters  from  the  army  and  navy  of  the  United 
States.  It  authorized  any  person  who  thought  he  had  cause 
to  suspect  any  other  person  to  be  a  deserter  either  from  the 
army  or  navy  or  the  State  militia,  to  apprehend  him  with- 
out warrant  and  take  him  before  a  justice  of  the  peace. 


^  The  United  States  withheld  its  approval  from  the  Declaration  of 
Paris  because  it  favored  more  complete  neutralization  of  the  sea.  It 
proposed  that  both  neutral  and  belligerent  ships  should  be  free  from 
capture  unless  their  cargoes  included  contraband  of  war  (see  Mr. 
Seward's  circular  letter  to  American  ministers  abroad,  April  24,  1861). 


STATE   OF   NEW   YORK  89 

This  bill  was  vetoed  by  the  council  on  the  ground  that  the 
power  it  conferred  was  arbitrary,  an  infraction  of  personal 
rights,  and  liable  to  great  abuse.  Erastus  Root  expressed 
the  more  popular  view  when  he  declared  that  the  council 
"should  have  bent  from  its  strictness,  in  aid  of  the  country," 
in  ''apprehending  deserters  who  were  stalking  through  the 
State  in  their  laced  coats,  with  impunity."  Both  Tompkins 
and  Van  Buren  spoke  with  feeling  when  they  referred  in 
the  Convention  of  1821  to  these  proceedings  of  the  council 
during  the  War  of  18 12. 

'The  scenes  which  passed  within  these  walls,  during  the 
darkest  period  of  the  late  war,  cannot,"  said  Van  Buren, 
"be  forgotten.  It  is  well  known  that  the  two  branches  of 
the  legislature  were  divided;  while  in  the  one  house  we 
were  exerting  ourselves  to  provide  for  the  defence  of  the 
country,  the  other  house  was  preparing  impeachments 
against  the  executive  for  appropriating  money  without  law, 
for  the  defence  of  the  State.  But  the  effort  was  unavailing. 
An  election  intervened,  and  the  people,  with  honorable 
fidelity  to  the  best  interests  of  their  country,  returned  a 
legislature  ready  and  willing  to  apply  the  public  resources 
for  the  public  defence.  They  did  so.  They  passed  a  va- 
riety of  acts,  called  for  by  the  exigencies  of  our  country. 
But  from  the  council  of  revision  were  fulminated  objec- 
tions to  the  passage  of  those  acts — objections  which  were  in- 
dustriously circulated  throughout  the  State  to  foment  the 
elements  of  faction.  Beyond  all  doubt,  at  that  moment  was 
produced  the  sentiment  which  has  led  to  the  unanimous 
vote  to  abolish  the  council.  The  legislature  had  exerted 
themselves  in  the  public  defence,  and  the  object  of  these 
objections  was  to  impress  the  public  mind  with  a  belief  that 
their  representatives  were  treading  under  foot  the  laws  and 
constitution  of  their  country.  The  public  voice  on  that 
occasion  was  open  and  decided;  and  it  has  ever  since  con- 
tinued to  set  in  a  current  wide  and  deep  against  the  council." 
In  making  these  remarks,  he  disclaimed,  he  said,  all  per- 


90  CONSTITUTIONAL    HISTORY 

sonal  allusion  to  the  author  of  those  objections.  "I  enter- 
tain for  him  the  highest  respect.  As  a  judicial  officer,  he  is 
entitled  to  great  consideration,  and  I  should  esteem  his  loss 
from  the  situation  which  he  fills  as  a  public  calamity." 

Tompkins  declared  that  he  had  been  a  member  of  the 
council  for  three  years  as  a  judge,  and  had  also  served  in 
it  during  the  term  of  his  governorship.  He  arraigned  the 
council  for  its  veto  in  1812  of  the  bill  for  the  salaries  of  the 
proposed  additional  judges  of  the  supreme  court;  for  its 
attitude  during  the  controversy  over  bank  charters ;  its  ap- 
proval of  the  charters  despite  the  numerous  imputations  of 
corruption,  and  charged  the  judges  with  unconsciously  min- 
gling political  considerations  with  their  proceedings  as 
members  of  the  council.  He  had,  he  said,  a  high  respect 
for  the  judicial  tribunals  of  the  State,  and  "could  with  sin- 
cerity avow  that  with  a  more  enlightened,  upright  and  dig- 
nified body  he  had  never  been  associated,  than  the  judges 
of  the  supreme  court  in  their  appropriate  sphere";  but  he 
could  with  equal  sincerity  affirm  that  he  had  never  been 
connected  with  a  body  "more  devoted  and  firm  in  party  and 
political  controversies  when  they  manifested  themselves  in 
legislative  proceedings."  To  preserve  judicial  purity  it 
would  be  necessary  to  abstract  the  judges  wholly  from 
legislative  and  political  concerns,  and  confine  them  solely 
to  the  interpretation  and  enforcement  of  the  laws  enacted 
by  the  proper  departments.  It  was  not,  he  added,  "the 
fault  of  the  judges  that  they  had  become  involved  in  politi- 
cal concerns  and  had  mingled  with  the  party  contests  that 
had  agitated  the  State  for  the  last  thirty  years.  It  was 
their  situation  as  members  of  the  council  of  revision,  which 
had  dragged  them  into  these  contests  and  had  made  parti- 
sans of  them." 

The  thing  which  perhaps  most  inflamed  the  public  mind 
against  the  council  was  its  veto  of  the  bill  passed  by  the 
legislature  in  November,  1820,  for  the  election  of  delegates 
to  a  constitutional  convention ;  but  judged  in  the  calm  light 


STATE   OF   NEW   YORK  91 

of  the  present,  the  veto  was  eminently  wise.  As  Chief  Justice 
Spencer  said  in  the  Convention  of  1821,  the  legislature  ''had 
no  authority  to  direct  a  convention  for  the  general  purpose 
of  amending"  the  constitution  ''without  a  previous  refer- 
ence to  the  people  of  the  question  whether  it  was  their 
wish  that  it  should  be  thus  amended."  He  denied  the  right 
of  the  legislature  to  direct  a  convention.  "In  doing  so  they 
had  no  higher  authority  than  any  other  respectable  body  of 
men,  self -moved,  and  acting  without  any  delegation  of 
power  whatever."  The  council  had  insisted  that,  as  a  pre- 
liminary to  holding  a  convention,  the  sense  of  the  electors 
should  be  taken.  The  Act  of  1821  was  in  accordance  with 
these  principles,  although  the  legislature  reluctantly  adopt- 
ed them,  as  it  did  not  wish  to  appear  to  acknowledge  their 
truth.  No  detriment  had  accrued  to  the  State  from  the 
delay.  The  only  result,  as  Judge  Spencer  said,  was  that  the 
convention,  instead  of  meeting  in  June,  met  in  August,  and 
"it  now  meets  upon  an  undisputed  right;  the  people  have 
legitimately  expressed  their  opinion  in  favor  of  a  conven- 
tion. This  delay  of  two  months  in  the  meeting  of  the  con- 
vention is  the  only  grievance  to  be  complained  of;  but  in 
my  opinion  a  great  and  salutary  principle  has  been  pre- 
served." 

The  subject  of  holding  a  convention  distracted  the  poli- 
tics of  the  State  for  several  years.  The  impulse  in  its  favor 
had  long  been  accumulating  momentum,  as  the  need  of 
changing  the  appointing  power,  of  curbing  the  council  of 
revision,  and  of  extending  the  elective  franchise,  had  grown 
more  evident.  Tammany  or  Bucktail  dissatisfaction  with 
the  use  of  patronage  by  Governor  Clinton  and  his  councils 
of  appointment  lent  aid  to  the  movement.  The  history  of 
the  years  18 18,  18 19,  and  1820  shows  that  Clinton  was 
himself  in  doubt  as  to  the  advisability  of  a  convention,  as 
he  distrusted  the  effect  it  would  have  upon  his  ability  there- 
after to  control  the  appointing  power,  which,  he  feared, 
might  be  dominated  by  Republicans.    In  the  spring  of  1820 


92  CONSTITUTIONAL   HISTORY 

he  recommended  the  call  of  a  convention  with  powers  of  a 
limited  nature.  A  bill  in  conformity  with  his  recommenda- 
tions was  introduced  in  the  assembly,  but  it  failed  to  be- 
come law  owing  to  the  conflict  between  the  Bucktails  and 
Clintonians  as  to  the  extent  of  the  power  which  should  be 
conferred  upon  the  convention.  In  his  message  of  Novem- 
ber 7,  1820,  after  his  re-election,  when  it  had  become  ap- 
parent that  the  pro-convention  feeling  had  acquired  greater 
strength,  the  governor  took  a  position  more  in  sympathy 
with  that  of  the  Republican  party.  "The  constitution,"  he 
said,  "contains  no  provision  for  its  amendment.  In  1801 
the  legislature  submitted  two  specific  points  to  a  convention 
of  delegates  chosen  by  the  people,  which  met  and  agreed  to 
certain  amendments.  Attempts  have  been  made  at  various 
times  to  follow  up  this  precedent,  which  have  been  unsuc- 
cessful, not  only  on  account  of  a  collision  of  opinion  about 
the  general  policy  of  the  measure,  but  also  respecting  the 
objects  to  be  proposed  to  the  convention.  These  difficulties 
may  be  probably  surmounted,  either  by  submitting  the  sub- 
ject of  amendments  generally  to  a  convention,  and  thereby 
avoiding  controversy  about  the  purposes  for  which  it  is 
called,  or  by  submitting  the  question  to  the  people  in  the 
first  instance  to  determine  whether  one  ought  to  be  con- 
vened ;  and  in  either  case,  to  provide  for  the  ratification  by 
the  people,  in  their  primary  assemblies,  of  the  proceedings 
of  the  convention." 

In  the  fall  of  1820,  the  Bucktails,  who  had  become  the 
predominant  element  in  the  Republican  party,  had  a  major- 
ity in  both  houses  of  the  legislature,  and  were  able  to  pass 
a  convention  bill  which  should  accord  with  party  wishes; 
and  to  enact  it  into  law,  unless  forbidden  by  the  council  of 
revision.  The  bill  was  promptly  passed  in  the  assembly  and 
in  the  senate.  From  the  senate  it  went  to  the  council  of 
revision,  where  it  was  considered  on  November  20.  The 
governor,  who  seems  to  have  been  inimical  to  a  convention 
with  general  powers,  yet  unwilling  to  appear  openly  antag- 


STATE    OF    NEW   YORK  93 

onistic,  was  desirous  of  not  having  to  vote  in  the  council. 
Justices  Van  Ness  and  Piatt,  both  Federalists,  were  equally 
anxious  with  the  governor  to  keep  their  hostility  to  the  bill 
secret.  Yates  was  supposed  to  favor  it,  Kent  and  Spencer 
were  known  to  disapprove  it,  and  the  beHef  among  the 
Clintonians  was  that  Justice  Woodworth  also  would  be 
ranked  among  its  opponents.  From  the  position  of  attorney 
general,  Woodworth  had  been  raised  to  the  supreme  court 
in  1 8 19,  upon  Smith  Thompson's  appointment  to  the  Fed- 
eral Supreme  Court,  and  the  Clintonians  too  hastily  as- 
sumed that  he  would  take  the  governor's  view  of  the  con- 
vention bill.  Had  all  the  council  been  present  when  the  bill 
came  before  it,  the  governor's  vote  would  not  have  been 
needed  for  its  rejection,  but  Van  Ness  and  Piatt  were  ab- 
sent upon  circuit.  Chancellor  Kent  read  a  vigorous  disap- 
proval of  the  measure,  in  which  Chief  Justice  Spencer  con- 
curred. Yates  voted  in  favor  of  the  bill,  and  to  the  aston- 
ishment of  the  governor  and  his  friends,  Woodworth,  who 
had  unwarrantedly  been  counted  as  in  opposition,  sided 
with  Yates,  thus  producing  a  tie  in  the  council  and  forcing 
the  governor  to  vote.  In  this  dilemma,  Clinton  voted  with 
Kent  and  Spencer,  and  the  bill  was  rejected.  The  respon- 
sibility for  its  defeat  was  clearly  placed  upon  the  chief  mag- 
istrate. The  rejection  of  the  bill  crystallized  sentiment 
against  the  council  of  revision,  and  aroused  a  hostility  to 
the  judges  which  would  be  content  with  nothing  less  than 
their  removal  from  office — consequences  the  opposite  of 
those  intended  to  be  accomplished  by  the  veto.  Its  object, 
says  Hammond,  "was  to  preserve  the  supreme  court,  and  it 
accelerated  its  destruction.  The  chancellor  and  judges  were 
charged  with  exercising  an  almost  arbitrary  power  *  *  * 
to  defeat  the  declared  will  of  the  people.  It  did  not  require 
any  special  gift  of  prophecy  to  predict  what  would  be  the 
result  of  a  contest  in  a  free  country  between  four  men  on 
the  one  side  and  the  people  on  the  other." 

The  chancellor's  objections  were  vigorously  stated,  and 


94  CONSTITUTIONAL   HISTORY 

were  irrefutable.  "There  can  be  no  doubt  that  all  free 
governments  are  founded  on  the  authority  of  the  people, 
and  that  they  have  at  all  times  an  indefeasible  right  to  alter 
and  reform  the  same  as  to  their  wisdom  shall  seem  meet. 
The  constitution  is  the  will  of  the  people  expressed  in  their 
original  charter,  and  intended  for  the  permanent  protection 
and  happiness  of  them  and  their  posterity,  and  it  is  perfectly 
consonant  to  the  republican  theory,  and  to  the  declared  sense 
and  practice  of  this  country,  that  it  cannot  be  altered  or 
changed  in  any  degree  without  the  expression  of  the  same 
original  will.  It  is  worthy,  therefore,  of  great  considera- 
tion, and  may  well  be  doubted  whether  it  belongs  to  the 
ordinary  legislature,  chosen  only  to  make  laws  in  pursuance 
of  the  provisions  of  the  existing  constitution,  to  call  a  con- 
vention in  the  first  instance  to  revise,  alter,  and  perhaps 
remodel  the  whole  fabric  of  the  government,  and  before 
they  have  received  a  legitimate  and  full  expression  of  the 
will  of  the  people  that  such  changes  should  be  made."  The 
council,  continued  the  chancellor,  "think  it  the  most  safe 
and  wise  course  and  most  accordant  with  the  performance 
of- the  great  trust  committed  to  the  representative  powers 
under  the  constitution,  that  the  question  of  a  general  re- 
vision of  it  should  be  submitted  to  the  people  in  the  first 
instance  to  determine  whether  a  convention  ought  to  be 
convened." 

The  bill  of  1820  was,  he  said,  fundamentally  erroneous 
in  another  particular :  It  required  the  electorate  to  reject  or 
accept  the  new  constitution  as  a  whole,  without  giving  op- 
portunity to  discriminate  between  provisions  that  were 
salutary  and  such  as  were  undesirable  or  unwise.  "If," 
said  Kent,  "the  people  are  competent  to  pass  upon  the  en- 
tire amendments,  of  which  there  can  be  no  doubt,  they  are 
equally  competent  to  adopt  such  of  them  as  they  approve 
and  reject  such  as  they  disapprove ;  and  this  undoubted  right 
of  the  people  is  the  more  important  if  the  convention  is  to 
be  called  in  the  first  instance  without  a  previous  consulta- 


STATE    OF    NEW   YORK  95 

tion  of  the  pure  and  original  source  of  all  legitimate  au- 
thority." 

The  veto  of  the  council  was  undeniably  sound  in  prin- 
ciple. It  was  not  the  province  of  a  legislative  body,  of  its 
own  initiative,  to  order  a  constitutional  convention  with- 
out first  ascertaining  the  will  of  the  people  upon  the  subject. 
Such  action,  without  any  previous  referendum,  was  a  plain 
usurpation  of  authority.  But  this  had  twice  been  done  in 
the  history  of  the  State,  and  precedents  from  other  States 
were  not  wanting.  The  discussion  in  1820  was  educational ; 
it  led  to  the  insertion  in  the  constitution  of  1822  of  a  pro- 
vision for  amendment  through  the  agency  of  legislation,  and 
to  the  insertion  in  the  constitution  of  1847  o^  ^  provision 
for  the  call  of  a  convention.  To-day  State  constitutions  as 
a  rule  require  a  vote  of  the  people  to  decide  whether  a  con- 
stitutional convention  should  be  called. 

The  objections  of  the  council  were  on  the  day  of  their 
reception  in  the  assembly  referred  to  a  select  committee,  of 
which  Michael  Ulshoeffer  was  chairman,  for  consideration 
and  report.  On  January  9,  1821,  Ulshoeffer  submitted  an 
able  and  elaborate  defense  of  the  bill.  He  challenged  the 
authority  of  the  council  to  exercise  such  ample  veto  power, 
declared  the  bill  consistent  with  the  constitution,  since  that 
instrument  was  silent  as  to  the  method  of  its  amendment, 
and  contended  that  the  measure  was  not  Inconsistent  with 
the  public  good,  as  "the  public  voice  has  called  for  this  law.'* 
But  the  revisory  power  of  the  council  was  plenary;  the  si- 
lence of  the  constitution  as  to  the  method  of  its  own  amend- 
ment could  not  make  the  legislature  the  arbiter  to  deter- 
mine when  it  needed  revision,  and,  as  should  often  be  re- 
membered In  these  later  days,  "the  public  voice"  may  not 
properly  call  for  any  law  that  contravenes  the  constitution. 

Although  days  were  spent  by  the  assembly  in  debate 
upon  the  bill  and  the  council's  objections,  it  was  found  im- 
possible to  obtain  the  requisite  two-thirds  vote  for  its  pas- 
sage; it  was  therefore  lost,  and  a  new  bill  presented.    The 


96  CONSTITUTIONAL    HISTORY 

debates  showed  that  no  bill  could  be  enacted  into  law  Ihat 
did  not  conform  with  the  views  expressed  by  the  council. 
To  draw  a  bill  of  this  nature  was  to  the  minds  of  the  Re- 
publican leaders  a  concession  which  they  could  not  make 
without  virtually  acknowledging  the  council's  objections  to 
be  valid.  It  was  the  hope  of  the  Clintonians  that  the  Buck- 
tail  chiefs  would  adhere  to  their  original  views,  for  the 
Clintonians  were  anxious  to  prevent  a  convention.  But 
the  majority  leaders  finally  and  wisely  decided  for  conces- 
sion. A  bill  was  introduced  entitled  "An  Act  recommend- 
ing a  convention  of  the  people  of  the  State,"  which  was 
adopted  by  the  assembly  and  subsequently  by  the  senate, 
and  to  which,  on  March  13,  1821,  the  council  of  revision 
affixed  its  sanction.  This  act,  in  certain  details,  was  amend- 
ed by  an  act  passed  April  3,  182 1.  The  act  recommending 
a  convention  provided  that  at  the  annual  election  to  be  held 
on  the  last  Tuesday  of  April  in  that  year  the  citizens  of 
the  State  should  determine  by  ballot  whether  a  convention 
should  be  held.  Vote  upon  the  question  was  opened  to  a 
wider  class  than  the  class  entitled  to  vote  for  assemblymen 
under  the  existing  constitution,  for  had  the  issue  of  a  con- 
vention or  no  convention  been  submitted  to  the  narrow  elec- 
torate of  the  time,  it  is  almost  certain  that  no  convention 
would  have  been  called.  All  free  male  citizens  of  twenty- 
one  years  were  made  eligible  who  possessed  freeholds  or 
were  actually  rated  or  paid  taxes  to  the  State;  or  were 
actually  enrolled  in  the  militia,  or  in  a  legal  volunteer  or 
uniform  corps,  and  had  done  actual  service  therein,  either  as 
officers  or  privates ;  or  had  been  exempted  from  taxation  or 
militia  duty;  or  who  had  been  assessed  to  work,  and  had 
actually  worked  on  the  public  roads  and  highways,  or  paid 
a  commutation  according  to  law.  The  inclusion  of  militia- 
men and  volunteer  soldiers  not  eligible  to  vote  for  assembly- 
men was  in  obedience  to  the  feeling  that  men  who  had  been 
willing  to  take  up  arms  for  the  defense  of  the  State  and 
the  Nation  were  entitled  to  vote  upon  this  important  ques- 


STATE    OF    NEW    YORK  97 

tion.  As  will  be  seen,  the  new  constitution  gave  the  suffrage 
to  all  classes  of  citizens  mentioned  in  this  enactment.  The 
election  was  to  be  held  during  three  days,  and  the  act  pro- 
vided that  if  the  appropriate  canvassers  should  certify  that 
the  vote  was  favorable,  delegates  should  be  elected  on  the 
third  Tuesday  in  June  to  a  convention  to  be  held  on  the  last 
Tuesday  of  August,  the  number  of  delegates  to  be  equal  to 
the  number  of  members  of  the  assembly.  All  persons  en- 
titled to  vote  upon  the  initial  question  were  made  eligible 
to  vote  for  delegates.  At  the  annual  election  in  April  the 
vote  for  the  convention  was  109,346;  against  it,  34,901,  a 
majority  of  74,445,  or  more  than  double  the  negative  vote. 
The  democratic  movement  had  grown  too  powerful  to  be 
resisted.  By  constitutional  means  it  had  been  demon- 
strated that  the  overwhelming  voice  of  the  people  was  for 
a  change  in  the  organic  law  in  vital  particulars. 

The  people  had  indeed  spoken,  for  beneath  all  dislike  of 
the  regnant  councils  a  force  was  at  v/ork  which,  had  there 
been  no  refractory  councils  to  abolish,  would  sooner  or  later 
have  compelled  a  broadening  of  the  suffrage.  The  desire 
for  this  was,  in  fact,  the  underlying  motive  for  the  conven- 
tion, especially  in  the  middle  and  western,  the  more  demo- 
cratic, parts  of  the  State.  The  influence  of  the  newer  sec- 
tions of  the  commonwealth  in  bringing  about  the  convention 
and  the  difference  in  antecedents  and  temperament  between 
these  sections  and  the  older  portions  of  the  State  have  not 
been  sufficiently  noted  by  historians.  To  the  newer  counties 
and  to  New  York  City,  which  as  a  port  of  entry  for  immi- 
grants had  been  steadily  growing  more  democratic,  the 
decision  for  a  convention  was  due.  The  Hudson  River 
counties  were  the  home  of  the  conservatives;  New  York 
City  and  newer  counties,  the  stronghold  of  the  progressives. 
The  Northwest  Territory,  which  had  been  reserved  for 
freedom  under  the  ordinance  of  1787  and  which  comprised 
the  vast  area  lying  between  the  Ohio  River,  the  Mississippi 
River,  and  the  Great  Lakes,  attracted  emigrants  from  New 


98  CONSTITUTIONAL   HISTORY 

England,  but  many,  while  en  routCj  decided  to  make  perma- 
nent homes  in  central,  western,  and  northern  New  York. 
As  Rufus  King  wrote  in  October,  1821 :  "Our  population 
is  nearly  divided  between  the  old  and  the  new  inhabitants. 
The  latter  are  out  of  New  England,  whose  laws,  customs, 
and  usages  differ  from  those  of  New  York." 

The  chief  emigrations  from  New  England  after  1781 
were  to  Pennsylvania,  New  York,  and  Ohio.  It  was  the 
pioneers  from  the  Eastern  States  who  settled  Utica,  Rome, 
Syracuse,  Ithaca,  Owego,  Binghamton,  Elmira,  Geneva, 
Rochester,  and  Buffalo.  Colonists  from  Massachusetts  had 
availed  themselves  of  the  rights  granted  to  that  State  in 
Western  New  York.  The  resemblance  of  Central  and 
Western  New  York  to  New  England  was,  says  a  recent 
writer,^  "so  striking  as  to  excite  comment,"  and  Timothy 
Dwight,  who  traveled  through  the  State  in  early  days, 
noted  the  likeness — the  Puritan  churches,  the  houses  erected 
in  the  New  England  manner,  the  "sprightliness,  thrift  and 
beauty"  of  the  settlements.  The  New  Englanders  carried 
with  them  their  town  meeting  and  their  love  of  home  rule. 
This  element  of  the  population  could  not  long  have  been 
contented  with  a  government  in  which  it  had  little  voice. 
The  people  of  New  England  extraction,  who  had  been  nour- 
ished from  infancy  upon  the  doctrines  of  civil  and  religious 
liberty,  urged  a  broader  basis  of  suffrage  than  was  accorded 
by  the  old  constitution.  So  inviting  were  the  natural  wealth 
and  resources  of  the  State  that  a  great  influx  of  population 
had  taken  place  as  early  as  18 12,  when  the  legislature  or- 
ganized twelve  new  counties.  In  1820  the  population  had 
increased  to  such  an  extent  that  at  that  time  the  number  of 
counties  was  fifty.  Extensive  immigration  from  the  British 
Isles  and  Western  Europe  had  not  yet  commenced.  The 
population  of  the  State  was  homogeneous,  being  largely  na- 
tive American. 


The  Expansion  of  New  England,"  pp.  160,  164. 


STATE    OF    NEW   YORK  99 

The  sentiment  from  the  newer  counties  was  decidedly 
in  favor  of  calling  a  convention,  whereas  the  older  and  aris- 
tocratic counties  were  either  apathetic  or  opposed.^  The 
vote  took  place  by  counties.  In  the  southern  district  the 
total  vote  for  the  convention  was  15,906,  against  it  8,409. 
In  New  York  county  alone  the  affirmative  vote  vastly  pre- 
ponderated over  the  negative,  being  6,513  to  1,810.  In 
Queens,  the  vote  against  holding  the  convention  was  almost 
double  that  for  it,  being  1,332  against,  to  692  for  a  con- 
vention. The  vote  in  the  middle  district  was  20,158  for; 
12,764  against,  Ulster  registering  a  heavy  adverse  vote — 
2,634  against  holding  a  convention;  only  1,224  in  favor  of 
it.  In  the  eastern  district,  comprising  the  newer  northern 
counties,  the  vote  was  25,465  for  a  convention  to  9,278 
against  it.  In  the  western  district,  which  was  dominated  by 
recent  settlers,  the  vote  was  47,817  in  favor  of  holding  a 
convention;  4,450  against  it.  The  majority  in  each  county 
within  this  district  was  heavy,  and  in  some  counties  there 
was  only  a  trifling  negative  vote.  From  the  vote  it  might 
have  been  prevised  that  although  the  representatives  of  the 
Morrises,  the  Van  Cortlandts,  the  Livingstons,  the  Coldens, 
the  Van  Rensselaers,  and  the  Schuylers  should  oppose 
broadening  of  the  franchise,  democratic  sentiment  would 
achieve  a  triumph. 


*  These  figures  are  taken  from  Debates  and   Proceedings  in  the 
Convention  of  1821. 


loo  CONSTITUTIONAL    HISTORY 


CHAPTER   VI 

CONVENTION   OF   182I PERSONNEL  OF  THE  CONVENTION 

FALL   OF   THE    COUNCIL   OF   APPOINTMENT   AND   OF   THE 

COUNCIL   OF  REVISION LOCATION   OF  THE  VETO   POWER 

DEBATES      OVER      NEGRO      SUFFRAGE EXTENSION      OF 

WHITE    SUFFRAGE INCREASE    OF    GOVERNOR'S     POWERS 

THE    NEW    SYSTEM    OF    APPOINTMENTS CHANGES    IN 

THE     SENATE BANK     CHARTERS POWER     OF     AMEND- 
MENT EMBODIED  IN  THE  CONSTITUTION. 

The  Convention  of  1821  was  destined  to  draft  an  ex- 
cellent constitution,  and  the  people  were  fortunate  in  their 
choice  of  delegates.  Men  of  less  ability  might  have  accom- 
plished the  destruction  of  the  two  councils  and  the  broaden- 
ing of  the  suffrage,  but  they  could  not  so  well  have  dealt 
with  many  other  problems  presented  to  the  convention. 
The  persons  chosen  as  delegates  were  mainly  of  the  Demo- 
cratic party  ^  and  included  men  prominent  in  the  affairs  of 
the  commonwealth,  or  thereafter  to  figure  importantly  in 
its  history.  At  least  one  county  rose  above  narrow  and 
provincial  considerations  in  the  choice  of  one  of  its  five  rep- 
resentatives. To  the  wisdom  of  the  people  of  Otsego  county 
is  it  due  that  Martin  Van  Buren  was  elected  a  delegate. 
He  was  not  a  resident  of  that  county,  but  he  was  chosen  by 
its  people  under  an  impression,  says  Hammond,  that  ''the 
public  good  required  that  he  should  participate  in  the  pro- 


^The  old  Republican  party,  the  name  having  been  gradually 
changed  between  1810  and  1820.  Tammany  Hall  still  clings  to  the  com- 
pound name,  Democratic-Republican,  which  was  used  in  the  time  of 
change. 


STATE    OF    NEW    YORK  loi 

ceedings  of  the  convention."  Van  Buren,  who  had  become 
a  United  States  senator  in  February,  1821,  was  one  of  the 
most  influential  members  in  a  convention  of  conspicuous 
talents.  His  absence  from  it  would  have  been  a  distinct 
loss  to  the  State.  No  one  can  peruse  the  debates  without 
perceiving  that  his  speeches  were  among  the  ablest  made 
in  the  convention.  "The  clearness  and  comprehensiveness 
displayed  in  his  discussions  of  the  great  principles  of  gov- 
ernment, the  soundness,  justice  and  moderation  of  his  views 
upon  the  important  questions  which  arose  in  the  convention 
must  impress  the  reader,"  says  his  biographer  Holland, 
"with  the  most  favorable  opinion  of  his  integrity  and  tal- 
ent." Holland  goes  so  far  as  to  assert  that  in  order  to 
present  a  complete  view  of  Van  Buren's  services  it  would 
be  necessary  to  transcribe  portions  of  almost  every  page  of 
the  convention's  reports.  Hammond,  who  devotes  an  elab- 
orate chapter  of  his  history  to  the  convention,  repeatedly 
quotes  Van  Buren's  utterances  and  commends  his  wisdom, 
tact  and  good  temper  in  the  discussion  of  the  important  top- 
ics that  came  before  that  body.  New  York  city  sent  Nathan 
Sanford,  late  a  Federal  senator  and  afterward  destined  to 
be  chancellor  of  the  State,  Jacob  Radcliff,  William  Pauld- 
ing, Henry  Wheaton,  famous  both  in  the  State  and  the  na- 
tional arena,  Ogden  Edwards  and  Peter  Sharpe.  John 
Duer,  who  subsequently  acted  as  one  of  the  statutory  re- 
visers and  later  occupied  a  seat  in  the  superior  court  of  the 
city  of  New  York,  led  the  delegation  from  Orange  county ; 
Samuel  Nelson,  who  in  1831  became  a  justice  of  the  su- 
preme court  of  the  State,  in  1836  chief  justice  of  that  court, 
and  in  1845  ^  member  of  the  highest  judicial  tribunal  in 
the  nation,  came  from  Cortland  county.  Daniel  D.  Tomp- 
kins, then  vice-president  of  the  United  States,  and  who 
had  sat  in  the  Convention  of  1801,  represented  Richmond 
county.  The  veteran  statesman,  Rufus  King,  came  from 
Queens;  Samuel  Young  from  Saratoga  county.  Albany 
sent  an  illustrious  contingent  in  Chancellor  Kent,   Chief 


I02  CONSTITUTIONAL    HISTORY 

Justice  Ambrose  Spencer,  Abraham  Van  Vechten  and 
Stephen  Van  Rensselaer.  From  Columbia  county  came 
Judge  William  W.  Van  Ness,  of  the  supreme  court,  and 
Elisha  Williams,  the  famous  advocate  and  antagonist  of 
Van  Buren  at  the  bar.  From  Oneida  came  Judge  Piatt, 
while  Westchester  county  sent  Peter  A.  Jay,  a  noted  lawyer, 
son  of  Governor  John  Jay.  Dutchess  county  was  well  rep- 
resented, among  its  delegates  being  Judge  James  Tallmadge, 
famous  for  his  speech  in  Congress  opposing  the  admission 
of  Missouri  as  a  slave  State,  and  Peter  R.  Livingston.  From 
Delaware  county  came  Erastus  Root.  The  members  of  the 
convention,  according  to  Hammond,  "presented  an  array  of 
talent,  political  experience,  and  moral  worth  perhaps  never 
surpassed  by  any  assemblage  of  men  elected  from  a  single 
State."  Proceedings  were  formally  begun  on  August  28, 
182 1,  Tompkins,  vice-president  of  the  United  States,  having 
been  chosen  president  of  the  convention  by  a  decisive  vote. 
On  motion  of  Rufus  King,  a  committee  was  appointed  to 
consider  and  report  as  to  the  manner  in  which  business 
should  be  transacted,  and  the  committee  promptly  reported 
in  favor  of  the  selection  of  a  number  of  committees  to 
which  should  be  referred  the  following  subjects :  The  Leg- 
islative Department,  the  Executive  Department,  the  Judi- 
cial Department,  the  Council  of  Revision,  the  power  of  ap- 
pointing to  office,  the  right  of  suffrage,  the  qualifications  of 
persons  to  be  elected,  and  the  mode  of  making  future 
amendments  to  the  constitution. 

Several  far-reaching  changes  were  made  by  the  Conven- 
tion of  1 821:  (i)  abolition  of  the  council  of  appointment 
and  the  substitution  of  a  new  system;  (2)  abolition  of  the 
council  of  revision  and  transfer  of  the  veto  power  to  the 
governor;  (3)  extension  of  the  elective  franchise;  (4) 
increase  of  the  governor's  powers;  (5)  reorganization  of 
the  courts. 

The  project  of  abolishing  the  council  of  appointment 
met  with  no  opposition.    The  report  of  the  committee  upon 


STATE   OF   NEW   YORK  103 

the  council  showed  how  enormous  was  the  patronage — 
8,287  military  and  6,663  civil  officers  held  commissions 
from  it,  and  these  were  generally  revocable  at  its  pleasure. 
Hammond  declares,  and  justly,  that  the  abolition  of  the 
council  entitles  the  convention  to  the  gratitude  of  its  con- 
temporaries and  of  succeeding  generations.  With  the  aboli- 
tion of  the  council,  the  problem  was  the  substitution  of  some 
other  mode  of  appointment  to  office.  The  task  of  its  inven- 
tion fell  to  the  committee  on  appointment  to  office,  of  which 
Van  Buren  was  chairman.  In  order  to  curtail  the  sphere 
of  action  of  the  central  appointing  power,  the  committee 
proposed  the  election  or  appointment  of  officials  in  the  sev- 
eral counties  or  towns,  where  their  duties  were  local,  and 
their  selection  by  the  legislature,  where  their  functions  were 
general.  Of  the  vast  number  of  military  appointments  con- 
trolled by  the  council  of  appointment,  all  except  seventy- 
eight,  consisting  of  officers  of  the  highest  rank,  were  to  be 
elected  by  privates  and  officers  of  the  militia.  The  commit- 
tee unanimously  decided  that  the  highest  military  officers 
and  all  judicial  officers,  except  surrogates  and  justices  of 
the  peace,  should  be  appointed.  Four  modes  of  appoint- 
ment, said  Van  Buren,  had  been  considered :  to  create  an 
elective  council  of  appointment;  to  bestow  the  appointing 
power  upon  the  executive;  to  give  it  to  the  legislature;  or, 
lastly,  to  give  it  to  the  governor,  with  the  advice  and  con- 
sent of  the  senate. 

The  arguments  for  and  against  these  different  plans 
were  analyzed.  A  council  elected  by  the  people,  which  Jus- 
tice Spencer  happily  styled  "the  ghost  of  the  old  Council  of 
Appointment,"  was  open  to  the  objection  of  lack  of  respon- 
sibility so  convincingly  urged  against  the  old  council,  and 
its  election  would  cause  tumultuous  excitement  in  every 
part  of  the  State.  A  council  chosen  by  the  legislature  was 
subject  to  many  objections.  If  the  veto  power  of  the  execu- 
tive were  to  be  enlarged,  to  give  him  also  control  of  appoint- 
ments to  office  would  be  unwise,  and  it  would  be  equally 


104  CONSTITUTIONAL    HISTORY 

unwise  to  lodge  this  vast  responsibility  in  the  legislature. 
Connection  between  the  legislature  and  the  appointing  pow- 
er was  undesirable  at  best,  but  the  least  objectionable  plan 
was  to  repose  the  power  in  the  governor  and  the  senate. 
The  practice  of  the  different  States  varied.  In  Pennsyl- 
vania and  Delaware  the  governor  made  appointments;  in 
Maine,  Massachusetts,  Maryland,  North  Carolina  and  Vir- 
ginia the  power  was  given  to  the  governor  and  a  council. 
In  Connecticut,  Rhode  Island,  Vermont,  New  Jersey,  South 
Carolina,  Georgia,  Ohio,  Tennessee,  Mississippi  and  Ala- 
bama, the  legislature  made  appointments.  New  Hampshire 
had  a  council  chosen  by  the  people,  while  in  Kentucky,  Lou- 
isiana, Indiana,  Illinois  and  Missouri,  the  appointing  au- 
thority was  vested  in  the  governor  and  senate.  Having  de- 
cided to  confer  the  appointing  power  upon  the  governor 
and  the  senate.  Van  Buren  stated  that  the  committee  pro- 
posed to  give  exclusive  right  of  nomination  to  the  governor, 
as  the  surest  means  of  fixing  responsibility.  Conviction 
was  unanimous  in  the  committee  that  the  construction  put 
upon  the  old  constitution  by  the  Convention  of  1801  had 
proved  baneful,  and  this  conviction  was  generally  enter- 
tained throughout  the  State.  Stability  of  tenure  required 
that  officials  who  did  not  hold  during  good  behavior  should 
not  be  removable  at  pleasure  or  without  cause,  as  had  been 
the  unfortunate  practice  which  had  vacated  every  such  of- 
fice with  every  change  of  party,  to  the  serious  injury  of 
public  interests.  To  remedy  the  evil,  no  removals  should 
be  made  except  for  cause  publicly  assigned;  but  the  com- 
mittee did  not  favor  a  regular  trial  of  complaints,  lest  the 
entire  time  of  the  senate  should  be  consumed  in  such  inves- 
tigations. 

The  report  of  the  committee  was  adopted  by  the  con- 
vention. Its  chief  merit  was  the  abolition  of  the  odious 
council  of  appointment.  The  substitute  was  a  complex  sys- 
tem which  had  at  least  the  advantage  of  dispersing  power. 
The  secretary  of  state,  comptroller,  treasurer,  attorney  gen- 


STATE   OF   NEW    YORK  105 

eral,  surveyor  general,  and  commissary  general  were  to  be 
appointed  by  the  senate  and  assembly,  either  by  separate 
agreement  or  on  joint  ballot.  Their  appointment  was  given 
to  the  legislature  for  the  reason,  as  stated  by  Van  Buren, 
that  being  officers  entrusted  with  the  public  property,  their 
duties  more  immediately  connected  them  with  that  body.^ 
Mayors  of  cities  were  to  be  chosen  by  municipal  common 
councils,  a  method  soon  afterward  to  be  changed.^  Justices 
of  the  peace  were  to  be  nominated  and  appointed  by  a  com- 
plicated system  through  the  action  of  county  boards  of  su- 
pervisors and  judges  of  county  courts.  Concerning  the  ap- 
pointment or  election  of  justices  of  the  peace,  an  acrimoni- 
ous debate  took  place  in  the  convention,  and  Hammond,  who 
ordinarily  treats  Van  Buren  with  the  utmost  fairness,  claims, 
perhaps  with  justice,  that  Van  Buren's  insistence  upon  the 
appointment  rather  than  the  election  of  these  officials,  was 
motived  by  his  desire  to  perpetuate  the  new  appointing 
power  which  was  gradually  springing  up  in  the  State  with 
ramifications  into  every  township  and  county.  In  a  few 
years  the  constitution  was  changed  to  make  these  justices 
elective.* 

The  committee  upon  the  council  of  revision  reported 
without  a  dissenting  vote  in  favor  of  its  abolition,  and  the 
report  was  unanimously  sustained.  But  in  the  debate  upon 
the  veto  power  it  became  apparent  that  the  reasons  for  this 
determination  were  various.  The  convention  was  com- 
posed of  radicals,  among  whom  were  Root,  Livingston  and 
Tompkins;  extreme  conservatives  under  the  lead  of  the 
chancellor,  the  judges,  and  Van  Vechten;  and  moderates 
like  Van  Buren,  Edwards,  Duer  and  Wheaton.  Each  class 
had  its  own  reasons  for  abolishing  the  council. 

With  the  convention  unanimous  in  its  condemnation  of 


'The  state  treasurer  under  the  first  constitution  was  chosen  by 
the  legislature  upon  the  initiative  of  the  assembly  (page  54). 
*  See  pp.  143,  261. 
*This  amendment  was  made  in  1826. 


io6  CONSTITUTIONAL   HISTORY 

the  council,  the  problem  seemed  merely  to  be  as  to  the  sub- 
stitute, if  the  majority  should  favor  the  deposit  somewhere 
of  a  revisory  power  over  legislation.  The  solution,  how- 
ever, did  not  prove  to  be  simple.  In  argument,  eulogies 
were  pronounced  upon  the  work  of  the  council,  which  were 
followed  by  unsparing  criticism  of  its  most  important 
vetoes.  The  chancellor  and  the  judges,  wincing  under  the 
hot  censure  that  fell  from  the  radical  wing,  defended  their 
motives  from  unjust  imputations.  For  a  time,  in  the  midst 
of  denunciations  and  laudations  of  the  council,  the  real 
issue  was  obscured;  but  it  came  again  into  clear  light  and 
was  ultimately  discussed  with  fullness  and  wisdom.  Prob- 
ably no  similar  assemblage  has  more  exhaustively  treated 
every  phase  of  the  veto  power — the  necessity  of  some  quali- 
fied control  over  the  legislative  body,  the  extent  of  that 
control,  and  the  branch  of  government  in  which  it  should  be 
reposed. 

The  debate  started  with  a  motion  by  Peter  R.  Living- 
ston to  substitute  a  majority  vote  of  each  house  in  lieu  of 
the  two-thirds  vote  proposed  by  the  committee  for  the 
passage  of  a  bill  over  the  governor's  veto.  Livingston's 
motion  was  ultimately  defeated  by  a  vote  of  95  against  it  to 
26  in  its  favor,  and  the  committee's  substitute  for  the  third 
article  of  the  old  constitution  approved  by  a  vote  of  100  to 
17.  The  constitution  as  thus  amended  remained  unchanged 
until  1875,  when  an  amendment  went  into  effect  requiring  a 
vote  of  two-thirds  of  the  members  elected  to  each  house  to 
give  vitality  to  any  measure  vetoed  by  the  governor.^  Spen- 
cer favored  the  abolition  of  the  council  of  revision,  but  with 
the  qualification  that  the  governor,  if  given  the  veto  power, 
should  be  rendered  independent  of  the  legislature  in  the 
matter  of  salary  as  well  as  tenure  of  ofiice.  A  provision 
was  accordingly  placed  in  the  new  constitution,  that  the 
governor's  compensation  should  be  neither  increased  nor 

*As  to  the  full  extent  of  the  amendment  that  went  into  effect 
January  i,  1875,  see  pp.  218,  235. 


STATE   OF   NEW   YORK  107 

diminished  during  the  term  for  which  he  was  elected,  thus 
reheving  him  from  the  temptation  of  subserviency  to  the 
wishes  of  the  legislature. 

The  qualified  negative  lodged  in  the  council  of  revision 
by  Article  III  of  the  constitution  of  1777,  is  said  to  have 
been  adopted  at  the  suggestion  of  Robert  R.  Livingston. 
This  is  only  partially  true,  for  under  Livingston's  plan 
vetoed  bills  would  have  been  returned  to  the  senate  in  all 
cases,  Livingston's  idea  doubtless  being  to  make  the  senate 
the  citadel  of  the  landed  interests  and  thus  protect  land 
owners  against  hostile  legislation.  On  Hobart's  motion, 
Livingston's  draft  was  amended  by  the  Convention  of  1777 
to  require  a  disapproved  bill  to  be  returned  to  the  house  in 
which  it  originated. 

Those  members  of  the  Convention  of  1821  who  asserted 
that  Article  III  was  designed  to  give  the  council  of  re- 
vision power  to  veto  only  unconstitutional  legislation  were 
mistaken,  as  was  conclusively  shown  by  Justice  Jonas  Piatt 
upon  the  floor  of  the  Convention  of  1821,  and  as  plainly 
appears  in  the  article  itself.  Chief  Justice  Jay,  author  of 
the  first  veto,  objected  to  the  bill  then  under  review  by  the 
council,  not  on  the  ground  that  it  was  unconstitutional,  but 
that  it  was  "inexpedient  and  inconsistent  with  the  public 
good";  and  the  remaining  members  of  the  council — Gov- 
ernor George  Clinton,  Chancellor  Livingston,  and  Justices 
Yates  and  Hobart — concurred  in  this  objection.  The  prac- 
tice of  the  council  from  the  outset  had  been  to  treat  the 
revisory  power  as  adequate  for  the  veto  of  measures  inimi- 
cal in  its  judgment  to  the  public  welfare.  As  was  repeated- 
ly shown  in  the  Convention  of  1821,  the  right  of  the  bench 
to  pronounce  laws  unconstitutional  in  suits  involving  those 
laws  was  not  conferred  by  Article  III,  but  existed  inde- 
pendently of  it.  The  council  of  revision  in  its  later  years, 
when  its  objections  to  measures  ardently  desired  by  the 
houses  aroused  indignant  opposition,  usurped  no  function 
in  disapproving  bills  on  other  than  constitutional  grounds. 


io8  CONSTITUTIONAL    HISTORY 

Spencer,  who  had  sat  in  the  council  since  his  appoint- 
ment to  the  supreme  court,  in  February,  1804,  spoke  of  its 
duties  as  "arduous  and  painful,"  duties  "which  no  judge 
would  be  anxious  to  perform."  Impelled  by  the  conviction 
that  the  executive,  judicial  and  legislative  powers  ought  to 
be  kept  separate,  he  voted  for  abolition.  Judge  Piatt,  whose 
encomiums  of  the  council  led  to  the  opening  of  the  flood- 
gates of  denunciation,  while  admitting  the  evils  and  incon- 
veniences of  giving  to  the  council  veto  power,  declared  that 
it  "would  never  be  exercised  with  so  much  wisdom  and  firm- 
ness in  any  other  hands."  Van  Buren  put  the  real  objec- 
tion in  lucid  form :  "I  object  to  the  council,  as  being  com- 
posed of  the  judiciary,  who  are  not  directly  responsible  to 
the  people.  I  object  to  it,  because  it  inevitably  connects  the 
judiciary — those  who,  with  pure  hearts  and  sound  heads, 
should  preside  in  the  sanctuaries  of  justice,  with  the  in- 
trigues and  collisions  of  party  strife;  because  it  tends  to 
make  our  judges  politicians  and  because  such  has  been  its 
practical  effect."  The  council  of  revision  was,  in  effect,  a 
life  chamber  having  no  accountability  to  the  people,  yet 
endowed  through  the  widely  ramifying  influence  of  the  ju- 
diciary with  extraordinary  ability  to  make  its  qualified  nega- 
tive absolute.    It  was  indeed  wisely  abolished. 

History  betrays  a  constant  tendency  of  representative 
assemblies  to  pass  hasty  and  ill-considered  legislation  in 
times  of  intense  public  excitement.  A  second  house,  less 
immediately  responsible  to  the  electorate,  constitutes  a  par- 
tial check  upon  a  more  popular  body.  An  executive  veto 
upon  the  legislature  was  a  legacy  of  the  Roman  government 
to  modern  Europe.  In  theory,  the  English  crown,  in  anal- 
ogy to  the  Roman  tribunes,  enjoys  an  absolute  veto  upon  the 
Lords  and  the  Commons,  although  the  prerogative  has  been 
in  abeyance  since  1692.  In  both  proprietary  and  royal 
colonies,  the  governor  possessed  an  equally  absolute  nega- 
tive upon  acts  of  the  colonial  legislature,  and  the  crown  had 
a  corresponding  power  over  the  governor.    Despotic  exer- 


STATE    OF    NEW   YORK  109 

cise  of  the  royal  prerogative  was  the  cause  of  one  of  the 
most  formidable  indictments  against  the  British  sovereign 
in  the  Declaration  of  Independence.  The  States  started 
with  a  distrust  of  the  executive  veto.  Jefferson's  repug- 
nance to  it  seems  never  to  have  been  overcome,  for  in  the 
constitution  prepared  by  him  for  Virginia,  he  provided  that 
the  governor,  two  councillors  of  State,  and  a  judge  of  each 
of  the  superior  courts  should  be  a  council  to  revise  all  legis- 
lative bills,  which,  after  disapproval  by  it,  should  be  passed 
only  by  a  vote  of  two-thirds  of  each  house.  Several  States 
refused  to  give  any  veto  power  at  all  to  the  governor;  and 
others  were  unwilling  to  concede  it,  unless  reviewable  by  a 
majority  in  the  legislature.  It  was  for  the  "right  of  the 
majority"  to  override  the  governor's  veto  that  Peter  R. 
Livingston  argued  in  the  Convention  of  1821.  No  veto,  he 
said,  was  allowed  either  in  Rhode  Island,  New  Jersey,  Dela- 
ware, Maryland,  Virginia,  North  Carolina,  South  Carolina, 
or  Ohio.  In  Connecticut,  Kentucky,  Tennessee,  Indiana, 
Missouri  and  Alabama,  a  majority  of  the  legislature  could 
overcome  the  veto.  Seven  States — Maine,  New  Hampshire, 
Massachusetts,  Pennsylvania,  Georgia,  Louisiana  and  Mis- 
sissippi— required  a  two-thirds  vote  for  the  purpose.  Illi- 
nois lodged  the  veto  with  the  governor  and  a  council,  but  a 
majority  of  the  legislature  could  nevertheless  pass  a  bill 
over  their  objections.  In  Vermont  the  veto  was  placed  in 
the  governor  and  council,  and  any  bill  objected  to  had  to  lie 
over  for  consideration  one  year.^ 


"Four  of  the  States  —  Delaware,  North  Carolina,  Ohio  and 
Rhode  Island — have  never  given  their  governors  the  veto  power.  In 
eight  others,  a  very  limited  veto  power  has  been  given,  which  may  be 
overridden  by  a  majority  of  the  whole  number  elected  to  each  house. 
These  are  as  follows,  the  year  in  which  the  veto  was  granted  being 
added:  Alabama,  1819;  Arkansas,  1836;  Connecticut,  1818;  Indiana, 
1816;  Kentucky,  1799;  New  Jersey,  1844;  Vermont,  1836;  West  Vir- 
ginia, 1872.  In  twenty-four  others,  a  two-thirds  vote  is  required  to 
override  the  veto;  California,  1849;  Colorado,  1876;  Florida,  1865; 
Georgia,  1789;  Illinois,  1870;  Iowa,  1846;  Kansas,  1859;  Louisiana, 
1812;  Maine,  1820;  Massachusetts,  1780;  Michigan,  1835;  Minnesota, 


no  CONSTITUTIONAL    HISTORY 

Majority  rule  should  have  limitations,  or  the  minority 
would  be  at  its  mercy.  The  convention  wisely  decided  for 
a  two-thirds  vote.  The  example  of  the  United  States  gov- 
ernment in  this  respect  has  been  generally  followed 
throughout  the  Union;  in  a  majority  of  the  States,  the  votes 
of  two-thirds  of  the  elected  members  are  required  to  over- 
ride a  veto.  One  argument  which  had  weight  in  bringing 
about  the  decision  of  the  New  York  convention  to  give  a 
veto  to  the  governor  was  the  in  frequency  of  its  use  by  the 
President  of  the  United  States,  and  governors  of  sister 
States.  Washington  used  it  twice,  Madison  three  times, 
Monroe  only  once;  whereas  neither  John  Adams,  Thomas 
Jefferson  nor  John  Quincy  Adams  employed  it  in  a  single 
instance.  Under  the  first  six  presidents  the  veto  was  used 
only  six  times.  Jackson  was  the  first  to  make  liberal  em- 
ployment of  it;  he  vetoed  eleven  measures  of  great  public 
consequence,  and  seven  of  his  vetoes,  being  unaccompanied 
by  any  message  of  explanation,  received  the  name  of 
"pocket"  vetoes.     The  qualified  veto  of  the  governor  has 

1857;  Mississippi,  1817;  Missouri,  1875;  Nevada,  1864;  New  Hamp- 
shire, 1792;  New  York,  1821 ;  Oregon,  1857;  Pennsylvania,  1790;  South 
Carolina,  1865;  Tennessee,  1870;  Texas,  1836  (republic),  1845  (state); 
Virginia,  1870;  Wisconsin,  1848.  In  Maryland  (1867)  and  Nebraska 
(1875)  a  three-fifths  vote  is  requisite.  But  one  State  (Kentucky)  has 
changed  from  a  two-thirds  vote  (1792)  to  a  majority  vote  (1799). 
The  following  States,  now  requiring  a  two-thirds  vote,  as  above,  re- 
quired only  a  majority  vote  at  first:  Florida,  1838;  Illinois,  1848;  Mis- 
souri, 1820;  Connecticut,  Maryland,  South  Carolina,  Tennessee,  Vir- 
ginia and  West  Virginia  were  without  the  veto  power  until  it  was 
granted  in  the  years  mentioned  above.  In  Nebraska  a  two-thirds  vote 
only  was  needed  from  1866  until  1875.  In  Illinois,  1818-1848,  the  veto 
power  was  given  to  the  governor  and  supreme  court  judges,  to  be  re- 
versed by  a  majority  vote;  and  in  New  York,  1777-1821,  to  the  gov- 
ernor, chancellor  and  supreme  court  judges,  to  be  reversed  by  a  two- 
thirds  vote.  In  Vermont,  1786-1836,  a  suspensory  power  until  the  fol- 
lowing session  was  given  to  the  governor  and  council.  In  the  States 
the  tendency  generally  has  been  to  increase  the  strength  of  the  veto 
power  by  making  the  votes  of  two-thirds  of  all  the  members  elected 
requisite  to  override  it,  and  further,  by  giving  the  power  to  veto  single 
sections  of  appropriation  bills.  (Article  on  "Veto"  ip.  Lalor's  Cyclo- 
paedia, III,  1067.) 


STATE    OF    NEW    YORK  iii 

become  an  integral  part  of  the  American  constitutional  sys- 
tem. No  convention  held  in  this  State  since  it  was  con- 
ferred has  shown  an  inclination  to  take  the  power  away. 
Indeed,  it  has  been  extended  so  as  to  give  the  governor  the 
right  to  veto  measures  after  the  close  of  a  legislative  ses- 
sion, and  to  veto  separate  items  in  appropriation  bills  J 

The  new  veto  and  appointing  power  rendered  the  gov- 
ernor so  much  more  of  a  factor  than  he  had  been  under 
the  old  constitution  that  the  convention  deemed  it  wise  to 
shorten  his  term  of  office  so  as  to  increase  his  responsibility 
to  the  electors  of  the  State.  Advocates  of  a  one-year  term 
were  not  wanting,  but  the  more  conservative  members,  at 
the  head  of  whom  was  Van  Buren,  favored,  and  the  con- 
vention approved,  a  two-year  term  as  giving  the  governor 
sufficient  time  to  qualify  himself  for  the  administration  of 
his  office,  while  holding  him  sufficiently  accountable  to  the 
people.  Under  the  constitution  of  1777  a  citizen  had  to  be 
a  freeholder  to  be  eligible  to  the  governorship.  The  Con- 
vention of  182 1  retained  the  freehold  restriction,  and  added 
a  provision  that  no  one  could  be  governor  unless  he  was  a 
citizen  of  the  United  States  of  the  age  of  at  least  thirty 
years,  resident  within  the  State  at  least  five  years  prior  to 
election.  Absence  from  the  State  during  that  period  on 
business  of  the  State  or  the  United  States  was,  however, 
not  to  render  a  candidate  ineligible. 

Extension  of  the  suffrage  was  effectuated,  first,  by  en- 
larging the  number  of  persons  eligible  to  vote  for  assembly- 
men, and,  secondly,  by  making  the  qualifications  of  electors 
of  senators  and  governor  the  same  as  those  of  electors  of 
assemblymen. 

At  the  outset  it  was  proposed  to  limit  the  suffrage  to 
white  men  only.  The  act  recommending  the  convention  had 
recognized  the  right  of  all  free  male  citizens  of  the  State 
with  some  restrictions  irrespective  of  color  to  vote  for  dele- 

'P-  235.  .       ....     -^ 


112  CONSTITUTIONAL    HISTORY 

gates.  When  it  was  proposed  to  adopt  this  principle  in  the 
convention,  Young  moved  to  amend  by  limiting  the  fran- 
chise to  white  men.  Jay  strenuously  opposed  the  restric- 
tion and  a  vigorous  debate  ensued.  The  decision  of  the 
convention  was  a  compromise,  but  the  attempt  to  disfran- 
chise negroes  then  enjoying  the  suffrage  failed.  The  con- 
vention resolved  to  give  the  vote  to  all  male  whites  of  the 
age  of  twenty-one  years,  inhabitants  of  the  State  for  one 
year  preceding  an  election  and  for  six  months  resident  of 
a  town  or  county,  who,  within  the  year,  had  served  in  the 
militia  or  paid  a  tax  to  the  State  or  county  upon  real  or 
personal  property.  But  no  vote  was  to  be  given  to  a  man 
of  color  unless  he  had  been  a  citizen  of  the  State  for  three 
years  and  for  one  year  next  preceding  any  election  had 
owned  a  freehold  estate  of  the  value  of  two  hundred  and 
fifty  dollars  free  and  clear,  upon  which  he  had  been  rated 
and  paid  taxes.  Had  colored  citizens  been  denied  the  suf- 
frage altogether,  as  was  urged  by  some  delegates,  a  privilege 
exercised  under  the  old  constitution  by  about  thirty  thou- 
sand colored  citizens  would  have  been  taken  away.  Hap- 
pily no  such  injustice  was  done.  As  Jay  well  said,  the  con- 
vention had  been  summoned  to  extend  the  franchise — not 
to  disfranchise  anybody. 

Under  the  first  constitution,  the  State  presented  the 
anomaly  of  colored  men  held  in  slavery  and  free  colored 
persons  exercising  the  right  to  vote.  Such  an  anomaly 
could  not  long  be  maintained,  and  before  many  years  the 
legislature  enacted  a  law  giving  freedom  to  every  child 
born  of  a  slave  within  the  State  after  July  4,  1799,  and  to 
every  slave  born  after  that  date  elsewhere,  but  brought 
within  the  State  by  any  person  intending  permanently  to 
reside  within  its  limits.  In  1817^  a  statute  was  passed  de- 
claring that  every  negro  or  mulatto  born  within  the  com- 


*A  few  days  before  his  resignation  of  the  office  of  governor  to 
enter  upon  the  vice-presidency,  Tompkins  in  a  special  message  urged 
the  passage  of  this  legislation. 


STATE    OF    NEW    YORK  113 

monwealth  before  July  4,  1799,  should  be  free  after  July  4, 
1827. 

Nor  was  extension  of  the  elective  franchise  in  the  case 
of  white  citizens  obtained  without  a  battle.  The  conven- 
tion act  of  182 1  awakened  landed  proprietors  to  the  con- 
viction that  they  were  to  lose  control  of  the  assembly.  They 
then  determined  to  retain  control  in  the  senate.  Chancellor 
Kent,  Judge  Spencer,  Abraham  Van  Vechten  and  Stephen 
Van  Rensselaer  were  sent  as  chiefs  of  a  powerful  con- 
tingent to  resist  any  change  with  respect  to  the  upper  house. 
The  conflict  was  precipitated  by  a  motion  by  Judge  Spencer 
to  keep  the  vote  for  senators  from  the  broader  electorate. 
The  senate,  declared  Spencer,  was  intended  "as  the  guard- 
ians of  our  property  generally  and  especially  of  the  landed 
interest,  the  yeomanry  of  the  State."  Kent  was  equally 
outspoken.  **I  wish  to  preserve  our  Senate  as  the  represen- 
tative of  the  landed  interest.  I  wish  those  who  have  an 
interest  in  the  soil  to  retain  the  exclusive  possession  of  a 
branch  in  the  legislature.  *  *  *  I  wish  them  always 
to  be  enabled  to  say  that  their  freeholds  cannot  be  taxed 
without  their  consent.  The  men  of  no  property,  together 
with  the  crowds  of  dependents  connected  with  great  manu- 
facturing and  commercial  establishments,  and  the  motley 
and  undefinable  population  of  crowded  ports,  may,  perhaps, 
at  some  future  day,  under  skillful  management,  predomi- 
nate in  the  assembly;  and  yet  we  should  be  perfectly  safe 
if  no  laws  could  pass  without  the  free  consent  of  the  own- 
ers of  the  soil.  That  security  we  at  present  enjoy;  and  it 
is  that  security  which  I  wish  to  retain." 

Lecky,  Maine  and  other  disbelievers  in  democracy  have 
added  little  to  the  arguments  made  by  Kent  and  Spencer 
upon  the  floor  of  the  convention,  but  the  judges  were  in 
error ;  opposition  to  democracy  was  opposition  to  the  entire  • 
mental  and  material  development  of  the  time.  The  vote  in 
favor  of  the  committee's  report  to  enlarge  the  suffrage  for 


114  CONSTITUTIONAL    HISTORY 

both  houses  and  the  governor  (loo  to  19)  shows  how  irre- 
sistible was  the  demand  for  extension  of  the  franchise.^ 

The  senate,  as  the  bulwark  of  the  landed  interest,  would 
have  had  an  absolute  negative  on  all  legislation  inimical  to 
that  interest.  It  would  have  used  its  veto  power  with  the 
freedom  of  the  old  council  of  revision.  Collisions  between 
the  upper  and  the  lower  house  would  have  been  inevitable, 
and  the  deadlocks  might  have  proven  dangerous  to  the 
State.  Root  was  on  sound  ground  when,  in  reply  to  Kent, 
he  declared  that  the  senate  and  assembly  ought  not  to  be 
elected  by  different  persons  ''with  genius  (sic)  and  feelings 
hostile  to  each  other."  "The  extreme  democratic  principle," 
which,  according  to  Kent,  ''had  been  regarded  with  terror 
by  the  wise  men  of  every  age,"  was,  however,  not  fully 
adopted  by  the  convention.  Van  Buren,  whose  argument 
has  received  and  merits  praise,  hesitated  to  go  so  far  as  to 
admit  every  citizen  to  the  privilege  of  the  ballot,  but  man- 
hood suffrage  was  bound  to  come;  and  in  1826  the  constitu- 
tion was  amended  so  as  to  concede  it  to  all  excepting  colored 
citizens. 

In  various  other  particulars,  the  constitution  departed 
from  the  first  form  of  government.  The  State  was  sub- 
divided into  eight  senatorial  districts  instead  of  four,  be- 
cause the  old  districts  were  altogether  too  large.  But,  as 
formerly,  the  governor  was  required  to  be  a  freeholder. 
This  was  a  concession  to  the  conservative  feeling. 

When  the  first  constitution  was  framed,  the  English 


°"I  took  strong  ground  against  the  adoption  of  that  constitution, 
for,  while  I  approved  of  many  of  its  provisions,  I  dreaded  the  effect  of 
extending  and  cheapening  the  suffrage.  While  it  was  evident  that  the 
constitution  would  be  adopted,  I  continued  my  opposition  to  the  bitter 
end.  I  had  great  veneration  for  the  opinions  of  Mr.  Jefferson,  and 
believing  with  him  that  large  cities  are  'ulcers  on  the  body  politic'  I 
feared  then,  as  I  have  ever  since  feared,  that  universal  suffrage  would 
occasion  universal  political  demoralization,  and  ultimately  overthrow 
our  government.  With  such  convictions,  I  was  willing  to  incur  all  the 
responsibility  of  resisting  a  popular  delusion."  "Autobiography  of 
Thurlow  Weed,"  I,  pp.  89,  90. 


STATE    OF    NEW    YORK  115 

law  of  criminal  libel,  which  then  became  the  law  of  the 
State,  was  extremely  illiberal,  for  it  was  the  province  of  the 
jury  simply  to  ascertain  whether  the  so-called  libel  had  been 
published  and  to  assess  damages.  The  question  whether 
the  publication  was  defamatory  and  libelous  was  left  to  the 
court,  nor  could  the  truth  be  urged  by  way  of  defense. 
Through  the  efforts  of  Erskine,  Pitt  and  Fox,  the  English 
law  was  ameliorated  in  1792.  In  the  case  of  the  People  v. 
Croswell,  in  which  the  defendant  was  indicted  for  a  libel 
upon  Thomas  Jefferson,  President  of  the  United  States,  two 
of  the  judges  (Kent  and  Thompson)  considered  that  the 
truth  should  be  received  in  evidence  and  the  jury  should 
judge  both  of  the  facts  and  the  law.  The  contrary  view  was 
maintained  by  Chief  Justice  Morgan  Lewis  and  Justice 
Brockholst  Livingston.  Kent's  learned  and  exhaustive 
opinion  shows  that  before  the  days  of  the  Star  Chamber 
the  common  law  rule  accorded  with  the  view  ably  con- 
tended for  by  Hamilton,  of  counsel  for  defendant.  There 
were,  said  Kent  in  the  Convention  of  1821,  only  four  judges 
on  the  bench  at  the  time;  the  court  being  equally  divided, 
the  matter  rested  there,  and  the  defendant  went  unpun- 
ished. In  April,  1804,  the  legislature  sent  to  the  council  of 
revision  a  bill  framed  along  the  lines  of  Kent's  opinion  in 
the  Croswell  case.  The  council  objecting  to  parts  of  the 
bill,  William  W.  Van  Ness  (afterward  justice)  introduced 
a  new  bill  which  passed  both  houses  unanimously  and  be- 
came law  April  6,  1805.  This  declared  that  on  the  trial 
of  every  indictment  or  information^^  for  a  libel  the  jury 
should  determine  the  law  and  the  fact  under  the  direction 
of  the  court  in  like  manner  as  in  other  criminal  cases  and 
should  not  be  directed  to  find  the  defendant  guilty  merely 
on  proof  of  publication,  and  that  in  every  such  prosecution 


"Informations  seem  to  have  been  prohibited  by  the  constitution 
of  1821,  for  the  language  of  the  fifth  amendment  to  the  United  States 
constitution  was  employed  in  the  Bill  of  Rights  adopted  by  the  con- 
vention of  that  year. 


ii6  CONSTITUTIONAL   HISTORY 

the  defendant  might  give  the  truth  in  evidence  as  a  de- 
fense. The  Convention  of  1821  incorporated  the  substance 
of  the  statute  into  the  organic  law  of  the  State.^^ 

The  convention  also  corrected  a  defect  in  the  first  con- 
stitution by  providing  a  method  for  amending  the  new  or- 
ganic law.  Only  one  mode  of  amendment,  however,  was 
adopted.  Amendments  were  first  to  be  approved  by  a  ma- 
jority of  the  members  elected  to  each  of  the  two  houses, 
and  then  agreed  to  by  two-thirds  of  all  the  members  elected 
to  each  house  of  the  succeeding  legislature.  They  were 
then  to  be  submitted  to  the  electors  qualified  to  vote  for 
members  of  the  legislature,  and,  when  ratified  by  a  ma- 
jority of  the  electors  voting  thereon,  were  to  become  part  of 
the  constitution.  But  no  provision  was  made  for  the  call 
of  a  convention  to  revise  or  amend  the  new  constitution. 
The  absence  of  such  a  provision  led  to  considerable  dis- 
cussion in  1845  ^^^  1846. 

Section  9  of  Article  VII  of  the  new  constitution  made 
the  consent  of  two-thirds  of  the  members  elected  to  each 
branch  of  the  legislature  essential  to  the  passage  of  every 
bill  appropriating  the  public  moneys  or  property  for  local 
or  private  purposes,  or  creating,  continuing,  altering  or 
renewing  any  body  politic  or  corporate — the  only  provision 
respecting  corporations  to  be  found  in  the  constitution. 

If  the  council  of  appointment  used  its  vast  powers  to 
reward  party  friends  and  take  vengeance  upon  party  ene- 
mies, a  like  spirit  seemed  to  pervade  the  legislature  in  the 
disposition  of  franchises.    According  to  more  than  one  his- 


"This  was  one  of  the  last  causes  argued  by  Hamilton.  Of 
his  presentation,  Kent,  in  the  Convention  of  1821,  declared  that  a  more 
able  and  eloquent  argument  was  perhaps  never  heard  in  any  court.  In 
closing  his  opinion  in  the  Croswell  case  he  adopted  as  perfectly  correct 
"the  comprehensive  and  accurate  definition  of  one  of  the  counsel  at  the 
bar  (General  Hamilton)  that  the  liberty  of  the  press  consists  in  the 
right  to  publish,  with  impunity,  truth,  with  good  motives,  and  for 
justifiable  ends,  whether  it  respects  government,  magistracy  or  indi- 
viduals," 


STATE   OF   NEW   YORK       i  117 

torian,  the  scandals  attendant  upon  the  grant  of  bank  char- 
ters blackened  the  fame  of  the  State  in  early  days.  The 
legislative  prerogative  to  bestow  special  privilege  seems 
almost  certain  to  give  birth  to  corruption,  and  the  only 
remedy  may  lie  in  further  checks  upon  legislative  authority. 
Human  nature  is  to-day  as  greedy  of  special  privilege  as 
ever,  and  the  utmost  vigilance  is  essential  to  protect  the 
public  interest. 

Banks  entered  into  politics  early  in  the  last  century. 
The  Bank  of  New  York  was  incorporated  on  March  21, 
1 79 1.  In  its  earliest  years,  while  under  the  control  of  Fed- 
eralist stockholders,  it  is  said  to  have  refused  banking  ac- 
commodation to  Republicans.  Burr  and  his  friends  accord- 
ingly planned  the  incorporation  of  the  Manhattan  Company 
to  give  money  facilities  to  merchants  of  the  Republican 
party.  Boldly  to  ask  a  Federalist  legislature  to  charter  a 
bank  under  Republican  control  would  have  been  to  court 
refusal;  the  promoters  decided  therefore  to  conceal  their 
real  purpose.^  ^  The  scourge  of  yellow  fever  from  which 
New  York  City  had  recently  suffered  aroused  a  demand  for 
a  better  water  supply.  Burr's  friends  accordingly  petitioned 
the  legislature  to  grant  a  charter  to  a  company  ready  to 
furnish  it.  The  whole  of  the  proposed  capital  of  two  mil- 
lion dollars  might  not,  it  was  conceded,  be  required  for 
water  purposes,  but  it  was  better  to  have  ample  funds. 
Authority  was  therefore  asked  to  invest  the  surplus  capital 
in  any  way  not  inconsistent  with  the  laws  or  constitution  of 
the  United  States  or  of  the  State  of  New  York.  The  bill 
passed  both  houses,  but,  in  the  council  of  revision.  Chief 
Justice  Lansing  strongly  criticised  the  comprehensive  terms 
of  the  clause  for  the  use  of  the  surplus.  His  adverse  vote 
was  overruled.  Governor  Jay,  Chancellor  Livingston,  and 
Judge  Benson  approved  the  measure  and  it  became  law. 


"The  legislature,  says  Hammond,  "had  to  be  blindfolded,  and 
in  that  condition  induced  to  do  that  which  they  would  not  do  with  their 
eyes  open." 


ii8  CONSTITUTIONAL   HISTORY 

The  Bank  of  Albany  had  been  incorporated  in  1792,  and 
the  Bank  of  Columbia  at  Hudson,  in  1793.  The  Federalist 
managers  of  the  Bank  of  Albany  are  said  to  have  proscribed 
Republican  merchants.  Accordingly,  a  charter  was  sought 
in  1803  for  another  bank  at  the  capital,  the  applicants  plead- 
ing the  necessity  for  its  incorporation  because  the  business 
of  the  Bank  of  Albany  was  so  conducted  "as  to  be  oppres- 
sive to  those  business  men  who  belonged  to  the  Republican 
party."  The  applicants  offered  to  pay  large  sums  into  the 
school  fund  and  the  literature  fund  of  the  State,  to  lend  the 
State  a  million  dollars  for  its  new  canals,  and  to  advance  a 
like  sum  to  farmers  for  the  improvement  of  real  estate,  if 
immunity  from  any  new  bank  charter  were  secured  for 
twenty  years.  Among  those  interested  in  the  enterprise 
were  Ambrose  Spencer,  Thomas  Tillotson,  Elisha  Jenkins, 
and  John  Taylor,  all  leading  Republicans.  Charges  that 
corruption  had  been  employed  to  obtain  the  necessary  votes 
in  the  legislature  were  freely  made  at  the  time.  The  new 
bank  was  incorporated  on  March  19,  1803. 

The  act  of  April  11,  1804,  forbade  any  person,  not  au- 
thorized by  law,  to  subscribe  to  or  become  a  member  of  any 
association  or  proprietor  of  any  bank  or  fund  for  the  issu- 
ing of  notes,  receiving  deposits,  making  discounts,  or  trans- 
acting any  business  lawful  for  incorporated  banks  to  under- 
take. It  prohibited  under  penalty  the  passing  of  bank  bills 
of  less  than  the  nominal  value  of  one  dollar.  This  strin- 
gent enactment  rendered  it  impossible  for  any  banking  in- 
stitution not  theretofore  incorporated  to  carry  on  its  busi- 
ness. The  alternative  was  either  to  make  application  for  a 
special  charter,  or  to  wind  up  its  affairs.  This  statute  would 
unquestionably  be  held  unconstitutional  at  the  present  time. 
Individuals  and  associations  had  embarked  their  funds  in 
the  banking  business  in  the  best  of  faith;  nevertheless,  the 
legislature  restrained  them  under  severe  penalty  from  con- 
tinuing a  business  perfectly  lawful  at  its  outset  and  forced 
them  to  wind  it  up,  however  great  the  loss. 


STATE   OF    NEW   YORK       '  119 

Among  the  institutions  affected  by  this  law  was  the 
Merchants  Bank,  and  it  was  therefore  impelled  to  press  for 
a  charter,  which  it  did  at  the  session  of  1805.  The  bank 
officials  argued  that  larger  banking  facilities  were  neces- 
sary in  the  city  of  New  York;  that  when  the  company  put 
its  capital  into  business,  such  use  of  its  funds  was  legiti- 
mate; and  that  the  recent  enactment  would  cause  serious 
loss  to  the  proprietors  unless  a  charter  were  granted.  Un- 
fortunately for  the  applicants,  Republicans  were  interested 
in  the  Manhattan  Company,  and  also  in  the  State  Bank  of 
Albany.  DeWitt  Clinton  and  his  New  York  City  associ- 
ates on  the  one  hand,  and  Justice  Spencer  and  other  influ- 
ential Republicans  of  Albany  on  the  other,  earnestly  op- 
posed the  bank's  application,  the  American  Citizen  and  the 
Albany  Register  assigning  as  reasons  why  a  charter  should 
be  refused  that  the  applicants  were  "Federalists  and 
Tories."  Resort  to  corruption  seemed  almost  a  necessity  to 
the  applicants  if  a  charter  were  to  be  secured;  and  it  was 
openly  charged  by  Cheatham  in  the  American  Citizen  that 
senators  had  received  bribes.  In  the  council  of  revision. 
Justice  Spencer,  who  was  interested  in  the  State  Bank  of 
Albany,  naturally  objected  to  its  approval.  But  the  bank 
obtained  its  charter  despite  his  opposition. 

No  further  bank  charters  were  sought  for  some  years. 
The  refusal  of  Congress  in  1812  to  renew  the  charter  of 
the  Bank  of  the  United  States  led  to  an  endeavor  to  secure 
a  charter  from  New  York  State  for  a  new  bank  in  the 
metropolis  under  the  name  of  the  Bank  of  America,  with  a 
capital  of  six  million  dollars.  The  capitalists  behind  this 
project  felt  confident  of  Federalist  support,  and  equally 
confident  of  Republican  hostility.  To  overcome  opposition, 
they  entered  upon  a  course  of  bribery  and  corruption  of 
members,  which  it  is  to  be  feared  was  in  some  instances  suc- 
cessful. It  becoming  apparent  to  Governor  Tompkins  that 
the  bill  would  pass  both  houses  and  that  a  majority  of  the 
council  of  revision  was  favorable  to  it,  he  took  the  bold  and 


120  CONSTITUTIONAL   HISTORY 

unexampled  step  of  proroguing  the  legislature  for  sixty 
days.  But  when  that  body  met  again  in  May  it  passed  the 
bill,  which  was  approved  by  the  council  of  revision  despite 
the  objections  of  Spencer,  who  evidently  saw  in  the  new 
corporation  a  formidable  rival  of  the  State  Bank  of  Albany. 
The  capital  of  the  new  bank,  he  contended,  was  so  great  as 
to  be  a  menace  to  smaller  institutions.  In  his  vehement  and 
bitter  hostility  to  the  charter,  he  urged  Clinton  to  take  an 
unqualified  stand  against  it.  But  Clinton,  who  was  then 
seeking  a  nomination  for  the  presidency  and  who  looked  to 
the  bank's  friends  for  support,  was  unwilling  to  do  so,  and 
his  refusal  to  accede  to  Spencer's  wishes  led  to  the  rupture 
of  their  intimate  political  relations. 

Uncertain  of  Clinton,  but  resolved  to  defeat  the  bank 
charter,  its  enemies  sought  to  increase  the  judicial  force  so 
as  to  obtain  the  necessary  votes  for  a  veto  in  the  council  of 
revision.  This  attempt  shows  the  appalling  extent  to  which 
politics  affected  every  branch  of  the  government,  for  the 
advocates  of  an  enlarged  bench  must  have  felt  certain  that 
the  council  of  appointment  stood  ready  to  pack  the  court 
with  judges  hostile  to  the  charter.  A  bill  for  the  addition 
of  two  new  judges  was  passed  by  the  assembly.  Its  passage 
in  the  senate  was  averted  when  it  became  known  that  a 
majority  of  the  council  of  revision  would  veto  it,  Kent  and 
Lansing  leading  the  opposition.  Apart  from  the  motive  be- 
hind it,  the  measure  was  sound,  and  the  objections  of  the 
council  were  unsound.  These  objections  were  that  be- 
cause under  the  English  common  law  and  the  colonial  gov- 
ernment of  New  York  the  number  of  judges  in  the  highest 
tribunal  had  never  exceeded  five,  the  constitution  of  the 
State  intended  that  number  to  be  the  maximum.  Tomp- 
kins, in  the  Convention  of  1821,  declared  that  the  judges 
had  resolved  to  limit  the  court  in  order  to  retain  their  con- 
trol of  legislation. 

Whether  the  solution  of  the  franchise  problem  which 
the  convention  formulated  was  sufficiently  far  reaching — 


STATE   OF   NEW   YORK  121 

and  that  may  be  doubted  ^^ — its  abrogation  of  the  two 
councils  and  its  general  treatment  of  constitutional  ques- 
tions were  wise  and  were  applauded  by  the  people.  The 
sins  of  a  system  were  to  be  visited  upon  the  judges  them- 
selves, as  will  be  seen  in  the  next  chapter. 


""The  intention  of  the  convention  was  good,  but  the  clause 
failed  to  accomplish  the  object  intended.  Witness  the  proceedings  in 
passing  the  law  to  incorporate  the  Chemical  Bank  and  other  institu- 
tions in  1825.  The  only  effect  of  the  restrictive  clause  in  the  constitu- 
tion has  been  to  increase  the  evil,  by  rendering  necessary  a  more  ex- 
tended system  of  corruption  in  some  form  than  was  before  indis- 
pensable."    Hammond,  I,  Z2)7- 


122  CONSTITUTIONAL   HISTORY 


CHAPTER   VII 

REORGANIZATION   OF  THE   COURTS  IN   THE   CONVENTION   OF 

1 82 1 RADICAL    ELEMENT    INSISTS    UPON    DESTRUCTION 

OF  EXISTING  SUPREME  COURT REPORT  OF  THE  COM- 
MITTEE  ON    THE   JUDICIARY ROOT''s   AMENDMENT   AND 

PROPOSED    MERGER     OF    LAW    AND    EQUITY REJECTION 

OF      ROOT      PROGRAM THE      TOMPKINS       AMENDMENT^ 

AIMED  DIRECTLY  AT  EXISTING  JUDGES GENERAL  DE- 
BATE ;  ROOT  ATTACKS^  VAN  BUREN  DEFENDS^  THE  COURTS 
TOMPKINS^'  AMENDMENT  REJECTED SELECT  COMMIT- 
TEE FRAMES  A  NEW  PLAN,  THAT  IS  NOT  SATISFACTORY 

carpenter's  plan  FOR  THE  ABOLITION  OF  THE  EXIST- 
ING SUPREME  COURT  AND  THE  CREATION  OF  NEW  TRI- 
BUNALS, IN  REALITY  A  REVIVAL  OF  ROOT^S  ATTACK  UPON 

THE     JUDGES CARPENTER     PLAN     CARRIED THE     NEW 

TRIBUNALS EARLY  AGE  LIMIT   FIXED   FOR  RETIREMENT 

OF    JUDGES    BY    FIRST    AND    SECOND    CONSTITUTIONS 

KENT^ BRIEF    REVIEW    OF    COURTS    UNDER    THE   SECOND 

CONSTITUTION THE    SUPERIOR    COURT    OF    NEW    YORK 

CITY THE     COURT     OF     COMMON     PLEAS,      NEW     YORK 

COUNTY,  AND  ITS  HISTORY SUMMARY  OF  CONVENTION'S 

WORK ITS    ADDRESS    TO    THE    PEOPLE STATUTORY    RE- 

♦      VISION  OF  1830 — TREATY  BETWEEN  NEW  YORK  AND  NEW 
JERSEY. 

In  the  reorganization  of  the  judicial  department,  the  su- 
preme court  was  destined  to  fall,  as  the  animosities  it  had 
aroused  were  implacable.  The  odium  in  which  the  council 
of  revision  had  become  involved  attached  to  the  judges  as 
members  of  it.  To  condemn  the  system  did  not  satisfy  the 
radical  element  in  the  convention;  it  demanded  the  political 


STATE   OF   NEW   YORK  123 

immolation  of  the  judges  themselves.  The  committee  on 
the  judiciary  department,  under  the  leadership  of  Peter 
Jay  Munro,  a  nephew  of  John  Jay,  proposed  a  moderate 
measure  of  reform  with  few  alterations  of  the  old  system. 
The  committee's  plan  retained  the  court  for  the  trial  of 
impeachments  and  the  correction  of  errors,  the  supreme 
court,  and  the  court  of  chancery.  It  contemplated  the 
enlargement  of  the  supreme  court  to  a  maximum  of  four 
justices,  and  the  creation  of  a  superior  court  of  common 
pleas,  to  relieve  the  supreme  court  judges  of  nisi  prius  and 
oyer  and  terminer  duties.  Besides  these  superior  tribunals, 
there  were  to  be  county  courts  and  courts  of  general  ses- 
sions of  peace,  and  such  other  inferior  courts  as  the  legis- 
lature might  establish.  The  court  of  errors  was  to  be 
rendered  even  more  unwieldy  by  the  addition  of  the  justices 
of  the  superior  court  of  common  pleas. 

In  order  to  aid  the  chancellor,  "whose  duties  were  so 
arduous  that  perhaps  no  other  man  in  the  State  would  have 
been  equal  to  their  performance,"  it  was  proposed  to  create 
a  vice-chancellorship  in  or  near  the  city  of  New  York,  and 
to  permit  the  vice-chancellor  not  only  to  preside  in  equity 
trials,  but  to  sit  in  the  court  of  errors,  and  the  legislature 
was  to  be  empowered  to  create  a  vice-chancellorship  for  the 
western  part  of  the  State.  The  acts  and  decrees  of  the 
vice-chancellor  were  to  be  reviewable  upon  appeal  to  the 
chancellor  himself.  The  business  of  the  supreme  bench 
had  grown  beyond  the  ability  of  the  judges  to  manage  it; 
not  more  than  one-third  of  the  cases  on  the  calendar  in 
New  York  City  were  usually  tried.  Two-thirds  of  the 
causes  were  necessarily  passed.  The  demands  of  former 
years  for  a  larger  judiciary  force  were  well  grounded,  yet 
these  had  always  met  apparently  invincible  opponents  in 
the  judges  sitting  as  members  of  the  council  of  revision. 
The  committee  proposed  also  to  vest  all  probate  and  estate 
jurisdiction  in  the  county  courts,  excepting  in  New  York 
county,  which  was  to  have  a  separate  court  for  the  probate 


124  CONSTITUTIONAL   HISTORY 

of  wills  and  the  grant  of  letters  of  administration.  The 
committee's  measure  did  not  satisfy  the  wish  of  a  majority 
of  the  convention.  The  people  in  the  western  part  of  the 
State  desired  more  common  law  judges  and  readier  oppor- 
tunities to  invoke  equitable  relief.  Suitors  in  chancery 
ought  not  to  be  obliged,  they  argued,  to  visit  the  capital 
in  order  to  obtain  chancery  aid.  Law  and  equity  powers 
should  be  united  in  one  set  of  tribunals. 

By  way  of  amendment,  Root  proposed  to  eliminate  the 
supreme  court  judges  and  the  chancellor  from  the  court 
of  errors.  He  advocated  a  supreme  court  to  consist  of  a 
chief  justice  and  not  more  than  four  nor  fewer  than  two 
associate  justices.  He  favored  the  creation  of  circuit 
courts;  the  number  of  circuit  judges  to  be  determined  by 
the  legislature,  their  powers  to  be  the  same  as  the  powers  of 
supreme  court  judges  at  chambers.  They  were  to  try  issues 
joined  in  the  supreme  court,  and  to  preside  in  courts  of 
oyer  and  terminer,  and,  if  required  by  law,  even  in  the 
courts  of  common  pleas  and  general  sessions  of  the  peace. 

Root's  radical  program  would  have  clothed  the  supreme 
court  justices  with  jurisdiction  in  all  cases  of  law  and 
equity  (first  accomplished  in  1847).  ^^  contemplated  the 
abrogation  of  the  existing  supreme  court.  Upon  Young's 
suggestion,  he  agreed  to  continue  the  court  of  chancery, 
with  its  existing  organization  subject  to  legislative  pleasure. 
This  proposed  amendment  started  an  animated  debate. 
Young,  Radcliff  and  others  urged  the  union  of  chancery 
and  common  law  jurisdiction  in  one  set  of  tribunals.  Even 
Kent  was  willing  to  favor  it  in  a  limited  degree.  But 
Munro,  Williams,  Van  Vechten,  Wheaton,  Duer,  Jay  and 
Van  Buren  supported  the  committee's  report  and  opposed 
Root's  plan,  and  Van  Buren  went  so  far  as  to  declare  that 
"no  judge  of  a  court  of  law  could  feel  himself  at  home  in  a 
chancery  suit." 

Sanford  offered  an  amendment  giving  the  legislature 
power  to  modify  or  abolish  courts  of  law  or  equity,  and  to 


STATE   OF   NEW   YORK  125 

transfer  their  functions  or  jurisdiction  from  one  tribunal  to 
another.  This  would  have  put  the  judiciary  under  legis- 
lative control,  and  have  measurably  blended  two  depart- 
ments of  government  which  should  be  kept  entirely  distinct. 
Root  in  reply  disclaimed  any  intention  to  dispossess  the 
court  of  chancery  of  its  power  unless  the  legislature  should 
think  proper  to  abolish  it.  King  insisted  that  the  higher 
courts  ought  to  repose  upon  a  constitutional  basis,  beyond 
legislative  modification.  The  Root  plan  was  rejected  by  a 
vote  of  73  to  36.  The  question  was  then  taken  on  the  first 
section  of  the  committee's  report — as  to  the  constitution  of 
the  judiciary  department — and  the  section  was  rejected  by 
a  vote  of  79  to  33.  The  conflict  thus  far  seems  to  have 
been  mainly  between  the  friends  of  a  separate  chancery 
court  and  the  advocates  of  a  merger  of  common  law  and 
equity  powers  in  one  tribunal,  either  by  constitutional  fiat 
or  in  legislative  discretion.  On  October  25,  Tompkins 
moved  an  amendment  in  which  the  hostility  of  the  more 
democratic  element  to  the  existing  judges  was  plainly  re- 
vealed. It  provided  a  court  for  the  trial  of  impeachments 
and  correction  of  errors,  a  court  of  chancery,  a  supreme 
court  with  a  chief  justice,  and  not  fewer  than  two  and  not 
more  than  four  associates,  courts  of  common  pleas  and 
general  sessions,  and  such  other  courts  as  the  legislature 
might  establish.  Tompkins'  motion  at  once  aroused  the 
friends  of  the  existing  judiciary.  Its  object,  said  Edwards 
in  opposing  it,  was  "so  to  frame  the  constitution  as  to  drive 
the  present  judges  from  their  stations."  Root  answered, 
that  as  the  convention  had  voted  to  disband  the  existing 
senate  and  to  reduce  the  term  of  the  first  judges  of  the 
county  courts  from  a  life  tenure  to  five  years,  the  amend- 
ment would  administer  like  treatment  to  the  supreme 
court  judges,  and  no  complaint  had  been  made  of  the  treat- 
ment of  senators  or  first  judges  of  county  courts.  "Let 
the  supreme  court  judges,"  he  said,  "be  left,  like  the  first 
judges  of  the  courts  of  common  pleas,  senators,  justices 


126  CONSTITUTIONAL   HISTORY 

of  the  peace,  and  other  officers  of  the  government,  to  the 
appointing  powers,  to  say  whether  they  have  so  behaved  in 
their  official  stations  as  to  entitle  them  to  reappointment." 
Van  Buren,  in  reply,  trenchantly  exposed  the  sophistry 
of  Root's  argument.  Was  the  convention  prepared,  he 
asked,  to  insert  an  article  in  the  constitution  for  the  sole  pur- 
pose of  vacating  the  offices  of  the  chancellor  and  judges  of 
the  supreme  court?  In  the  select  committee  the  advocates 
of  it  had  "thrown  off  all  disguises."  The  rule  they  would 
apply  to  the  chancellor  and  members  of  the  supreme  court 
had  no  analogy  to  the  case  of  the  first  judges  of  the  county 
court.  Those  judges  had  not  been  removed;  their  office, 
as  an  office  during  good  behavior,  had  been  abolished.  If 
the  offices  of  the  existing  senators  were  to  be  vacated  before 
the  close  of  their  constitutional  term,  that  was  necessitated 
by  the  reconstitution  of  the  senate,  which  was  to  cease  to  be 
the  seat  of  representatives  of  freeholders  only.  If  he  cor- 
rectly interpreted  the  purpose  of  the  Tompkins  amendment, 
was  it  wise,  he  asked,  to  take  this  extreme  step?  Might  it 
not  endanger  the  ratification  of  the  constitution?  He 
exhorted  the  delegates  to  rise  superior  to  feeling.  Their 
constituents  demanded  no  such  measure.  The  convention 
had  altered  the  impeaching  power  from  two-thirds  to  a 
bare  majority,  and  had  provided  for  removal  of  the  chan- 
cellor and  the  judges  by  a  vote  of  two-thirds  in  one  house 
and  a  majority  of  the  other.  The  judicial  officer,  who 
could  not  be  reached  in  either  of  these  ways,  ought  not  to 
be  touched.  No  public  reasons  called  for  the  proposed 
amendment,  and  it  ought  not  to  be  adopted  from  personal 
feelings.  If  personal  feelings  might  influence  any  one,  he, 
above  all  others,  might  be  excused  for  indulging  them. 
Through  his  whole  life  he  had  been  "assailed  from  that 
quarter  by  hostility,  political,  professional  and  personal, 
hostility  which  had  been  most  keen,  active  and  unyielding. 
*  *  *  Am  I  on  that  account  to  avail  myself  of  my  situa- 
tion as  a  representative  of  the  people,  sent  here  to  make  a. 


STATE   OF   NEW    YORK  127 

constitution  for  them  and  their  posterity,  and  to  indulge 
my  individual  resentments  in  the  prostration  of  my  private 
and  political  adversary?"  It  was  unnecessary  for  him  to 
say  that  he  should  forever  despise  himself,  if  he  could  be 
capable  of  such  conduct.  That  sentiment,  he  trusted,  was 
not  confined  to  himself  alone.  The  convention  should  not 
ruin  its  character  and  credit  by  proceeding  to  such  ex- 
tremities. 

The  Tompkins  amendment  was  rejected  by  a  vote  of  64 
to  44.  From  motives  of  delicacy,  Kent  and  Spencer  ab- 
stained from  recording  their  disapproval  of  it.  This  vote 
and  the  previous  rejection  of  the  committee's  plan  left  the 
whole  subject  in  chaos.  A  select  committee  consisting  of 
Munro,  Tompkins,  Root,  Buel,  Nathan  Williams,  Van 
Buren,  and  Schenck  was  then  appointed  to  report  a  new 
plan.  By  a  majority  of  one  the  committee  favored  the 
division  of  the  State  into  circuits  and  the  appointment  of 
circuit  judges  with  many  of  the  powers  of  the  supreme 
court  justices.  These  judges,  and  also  the  chancellor  and 
the  justices  of  the  supreme  court,  were  to  hold  office  during 
good  behavior,  or  until  the  age  of  sixty  years,  and  were  to 
be  ineligible  to  any  other  office  or  public  trust  during  their 
respective  terms.  The  legislature  was  authorized  to  create 
equity  tribunals  subordinate  to  the  court  of  chancery. 

The  committee's  report  was  not  satisfactory  to  the  con- 
vention. Finally,  on  November  first.  Carpenter  proposed 
to  create  a  new  supreme  court  to  consist  of  a  chief  justice 
and  two  associates.  The  State  was  to  be  divided  into  not 
fewer  than  four  and  not  more  than  eight  districts,  for  each 
of  which  a  district  judge  should  be  appointed  to  hold  office 
upon  the  same  tenure  as  the  justices  of  the  supreme  court, 
with  the  powers  of  such  justices  at  chambers.  They  were 
to  try  issues  joined  in  the  supreme  court,  and  to  preside  in 
oyer  and  terminer.  They  were  also  to  enjoy  such  equity 
jurisdiction  as  the  legislature  might  see  fit  to  confer,  sub- 
ject to  appeal  to  the  chancellor.     Chief  Justice  Spencer, 


128  CONSTITUTIONAL   HISTORY 

who  seems  to  have  forecast  the  determination  of  the  con- 
vention to  destroy  the  existing  supreme  court,  suggested 
that  the  legislature  be  authorized  to  appoint  circuit  judges 
of  like  tenure  with  the  supreme  court  judges,  to  hold  terms 
in  such  counties  as  it  might  designate,  and  to  sit  in  the  court 
of  impeachment  and  court  of  errors  in  like  manner  as  su- 
preme court  judges.  Spencer's  plan  involved  only  a  slight 
departure  from  the  Carpenter  plan  for  the  appointment  of 
district  judges.  He  had,  he  said,  received  his  appointment 
from  the  venerated  first  governor  of  the  State ;  he  had  been 
in  office  eighteen  years ;  his  term  would  expire  by  constitu- 
tional limitation  in  less  than  five  years,  and,  as  his  friends 
knew,  he  had  often  contemplated  resigning  it.  The  defects 
of  the  system  had  occupied  the  attention  of  the  judges,  and 
while  he  believed  that  with  the  addition  of  one  or  two  to 
their  number,  they  would  be  able  for  years  to  come  to  trans- 
act all  their  business,  he  would  favor  the  plan  of  appointing 
circuit  judges,  provided  they  were  to  hold  office  during  good 
behavior.  With  an  adequate  salary  and  such  a  tenure,  men 
of  the  requisite  legal  requirements  and  of  integrity  and 
character  might  be  obtained.  As  for  himself,  if  the  public 
good  required  his  removal,  he  should  say  "amen,  to  it." 
Root  supported  Carpenter's  plan,  as  did  Livingston.  In 
order  to  preserve  the  existing  supreme  court,  Wheaton, 
foreseeing  the  possibility  of  its  abrogation  and  resolved 
upon  procuring  an  explicit  vote,  tried  to  add  to  the  Carpen- 
ter resolution  a  provision  that  would  have  kept  the  existing 
judges  in  office. 

Duer,  who  had  voted  against  the  Tompkins  amendment, 
opposed  the  Wheaton  proviso;  Van  Vechten  advocated  it; 
the  convention  rejected  it  66  to  39,  and  passed  Carpenter's 
amendment,  62  to  53.  Thus  the  party  of  Root,  Livingston 
and  Tompkins,  whose  constant  aim  had  been  to  depose  the 
judges  then  in  office,  won  by  the  substitution  of  a  court 
that  necessitated  new  appointments.  It  may  be,  as  was 
charged,  that  there  were  men  in  the  convention  who  aspired 


STATE   OF   NEW   YORK  129 

to  succeed  Spencer  and  his  associates.  Subsequently,  the 
word  "circuit"  was  substituted  for  ''district/'  and  as 
amended  the  judiciary  article  was  carried. 

Thus  the  judges  were  forced  out  of  office  because  of 
public  irritation  against  a  vicious  system  for  which  they 
were  not  responsible.  The  constitution  of  1777  tended  to 
make  them  political  partisans.  The  tenure  of  their  office 
secured  them  from  removal  and  from  the  fate  of  other 
political  partisans,  but  that  very  immunity,  as  Hammond 
well  says,  emboldened  them  to  be  guilty  of  greater  violence 
as  partisans.  And  although  they  could  not  be  removed 
from  office,  they  were  free  to  accept  nominations  for  other 
offices.  Jay,  in  1792,  while  still  Federal  chief  justice,  ran 
for  the  governorship,  although  with  reluctance.  Joseph  C. 
Yates  was  elected  to  that  office,  as  the  first  governor  under 
the  second  constitution,  shortly  after  the  loss  of  his  commis- 
sion as  supreme  court  judge.  Smith  Thompson,  before  his 
elevation  to  the  supreme  court  at  Washington,  had  been 
district  attorney  of  the  old  middle  district,  associate,  and, 
afterward,  chief  justice  of  the  State  supreme  court,  and 
secretary  of  the  navy  under  President  Monroe.  Tompkins 
was  successively  judge,  governor,  vice-president  of  the 
United  States.  Lewis  and  Marcy  also  found  the  bench 
the  stepping-stone  to  high  political  office.  Judges  ought  not 
to  court  political  preferment.  The  gain  to  the  bench  would 
be  great  if  its  members,  in  the  spirit  of  Kent,  should  con- 
sider that  ambition  can  ask  no  place  of  loftier  dignity  or 
larger  usefulness. 

The  second  constitution  created  a  new  court  of  errors, 
with  substantially  the  same  jurisdiction  as  had  been  pos- 
sessed by  the  court  organized  in  1777,  but  the  senatorial 
membership  was  enlarged  to  32.  The  court,  which  lost  its 
aristocratic  tinge  when  the  freehold  restriction  for  sena- 
tors was  abolished,  continued,  however,  until  January  i, 
1847.  The  State  was  divided  into  circuits  not  fewer  than 
four  nor  more  than  eight  in  number,  as  the  legislature 


I30  CONSTITUTIONAL   HISTORY 

might  determine,  for  each  of  which  a  circuit  judge  was  to 
be  appointed  in  the  same  manner  and  to  hold  his  office  by 
the  same  tenure  as  the  justices  of  the  supreme  court.  Each 
circuit  judge  was  to  possess  the  powers  of  a  supreme  court 
justice  at  chambers,  and  in  the  trial  of  issues  joined  in  the 
supreme  court  and  in  courts  of  oyer  and  terminer.  The  leg- 
islature was  authorized  to  clothe  the  circuit  judges  and  sub- 
ordinate courts  with  equity  powers,  subject  to  the  appellate 
jurisdiction  of  the  chancellor.  Neither  the  chancellor,  nor 
the  justices  of  the  supreme  court^  nor  any  circuit  judge 
could  hold  any  other  office  or  public  trust.  To  interdict 
the  use  of  judicial  place  as  the  pathway  to  other  office,  the 
constitution  provided  that  all  votes  for  any  elective  office 
given  by  the  legislature  or  the  people,  for  the  chancellor  or 
a  justice  of  the  supreme  court  or  circuit  judge  during  his 
continuance  upon  the  bench  should  be  void. 

The  provision  of  the  first  constitutions  terminating  ju- 
dicial activity  at  sixty  has  frequently  been  criticised.  Ham- 
ilton, in  the  Federalist,  in  1788,  after  declaring  that  of  all 
the  faculties  of  the  human  mind  the  judgment  is  most  im- 
proved and  refined  by  age,  said :  ''In  a  republic  where  for- 
tunes are  not  affluent  and  pensions  not  expedient,  the  dis- 
mission of  men  from  stations  in  which  they  have  served 
their  country  long  and  usefully,  on  which  they  depend  for 
subsistence,  and  from  which  it  would  be  too  late  to  resort 
to  any  other  occupation  for  a  livelihood,  ought  to  have  some 
better  apology  to  humanity  than  is  to  be  found  in  the  imag- 
inary danger  of  a  superannuated  bench."  That  this  limita- 
tion should  have  been  continued  under  the  second  constitu- 
tion was,  according  to  Mr.  William  Johnson,  Kent's  inti- 
mate friend  and  the  first  State  reporter,  cause  for  unfeigned 
astonishment.  ''We  might,"  he  said,  "search  in  vain  the 
history  of  mankind  from  the  first  institution  of  civil  gov- 
ernment to  the  formation  of  the  constitution  of  the  State  of 
New  York  for  a  similar  limitation.  It  is  opposed  to  the 
opinions  of  the  greatest  law-givers,  statesmen,  and  political 


STATE   OF    NEW    YORK  131 

writers  in  all  those  States  and  countries  to  which  we  are 
accustomed  to  look  for  the  lights  of  wisdom  and  the  lessons 
of  experience.  It  is  a  satire  on  the  intellect  of  the  bar  and 
a  standing  reproach  to  the  discernment  and  integrity  of 
those  to  whom  is  entrusted  the  power  of  appointment  to 
office,  for  it  is  almost  certain  that  one  fit  to  be  a  judge  at 
forty  will  be  equally,  if  not  more,  competent  at  sixty  years 
of  age/'  ^  It  is  a  well-known  fact  that  the  celebrated  Com- 
mentaries were  the  fruit  of  Kent's  post-judicial  years.^ 

^In  an  address  before  the  Association  of  the  Bar  of  the  City  of 
New  York,  "The  Revision  of  the  Statutes  of  the  State  of  New  York 
and  the  Revisers,"  January  22,  1889,  the  late  WilHam  Allen  Butler,  son 
of  Benjamin  F.  Butler,  one  of  the  revisers,  said:  "The  first  draft  of 
the  Judiciary  Article  of  the  Constitution  of  1821  extended  the  tenure  of 
the  judicial  officers  to  seventy  years  of  age,  but  by  some  sinister  influ- 
ence the  unreasonable  limitation  of  sixty  years  was  substituted  by  the 
Convention." 

^The  modern  lawyer  is  bewildered  with  a  multitude  of  prece- 
dents, but  the  early  bar  of  the  State  regretted  the  paucity  of  decisions. 
Not  a  single  opinion  by  Jay  or  his  associates,  or  by  Chancellor  Living- 
ston or  Lansing,  is  to  be  found  in  the  books.  There  was  no  authorized 
law  reporter  until  1804.  "When  I  came  to  the  bench,"  says  Kent, 
"there  were  no  reports  or  State  precedents.  The  opinions  from  the 
bench  were  delivered  ore  tenus.  We  had  no  law  of  our  own  and 
nobody  knew  what  it  was.  I  first  introduced  a  thorough  examination 
of  cases  and  written  opinions.  *  *  *  This  was  the  commencement 
of  a  new  plan  and  then  was  laid  the  first  stone  in  the  subsequently 
erected  temple  of  our  jurisprudence.  I  gradually  acquired  a  prepon- 
derating influence  with  my  brethren,  and  the  volumes  in  Johnson  after 
I  became  the  chief  justice  in  1804  show  it.  The  first  practice  was  for 
each  judge  to  give  his  portion  of  opinions  when  we  all  agreed,  but  that 
gradually  fell  off  and  for  the  last  two  or  three  years  before  I  left  the 
bench  I  gave  the  most  of  them.  I  remember  that  in  the  8th  Johnson 
all  the  opinions  for  one  term  are  'per  curiam/  The  fact  is,  I  wrote 
them  all,  and  proposed  that  course  to  avoid  exciting  jealousy  and  many 
a  'per  curiam'  opinion  was  so  inserted  for  that  reason." 

The  practice  which  Kent  inaugurated  as  judge  he  carried  into 
equity  when,  in  1814,  he  was  appointed  chancellor  to  succeed  John 
Lansing,  junior,  the  successor  of  the  distinguished  Robert  R.  Living- 
ston. The  seven  volumes  of  Johnson's  Chancery  Reports  bear  ample  testi- 
mony to  Kent's  study  and  erudition.  "In  February,  1798,"  he  naively 
tells  us,  "I  was  appointed  to  the  office  of  judge  of  the  Supreme  Court. 
This  was  the  grand  object  of  my  ambition  for  several  years  past.  It 
appeared  to  me  to  be  the  true  situation  for  the  display  of  my  knowl- 


132  CONSTITUTIONAL   HISTORY 

Under  the  second  constitution,  the  State  for  twenty- 
four  years  enjoyed  the  benefit  of  a  judiciary  appointed  by 
the  executive  with  the  approval  of  the  senate.  Many  of  the 
judges  under  the  first  constitution  were  learned  jurists,^ 
but  it  is  an  undeniable  truth  that  those  who  came  to  the 
higher  courts  by  the  governor's  appointment  after  1822 
were  lawyers  of  conspicuous  learning  and  ability,  whose 
opinions  shed  a  lustre  upon  our  jurisprudence  which  has 
not  been  dimmed  by  any  brilliancy  of  the  bench  in  later 
years. 

Of  the  governor's  appointees,  Woodworth  was  the  first 
to  retire.  He  was  followed,  in  1829,  by  William  L.  Marcy, 
who  resigned  in  1831  to  enter  the  senate  of  the  United 
States.  During  his  occupancy  of  the  bench,  says  Ham- 
mond, ''he  acquitted  himself  in  a  manner  satisfactory  to 
the  bar  and  the  public,  and  afforded  decisive  evidence  of 
integrity  and  impartiality."  The  great  jurist  who  suc- 
ceeded Marcy  was  Samuel  Nelson.    He  had  been  a  judge  of 


edge,  talents  and  virtue,  the  happy  means  of  placing  me  beyond  the 
crowd  and  pestilence  of  the  city,  of  giving  me  opportunities  to  travel 
and  to  follow  literary  pursuits, — a  taste  which  is  after  all  the  most 
solid  and  permanent  of  all  sublunary  enjoyments.  By  the  acceptance 
of  this  office  I  renounced  all  my  offices  in  New  York  with  all  their 
accumulated  income  and  all  my  prospects  of  wealth,  for  a  moderate 
but  permanent  support,  for  leisure  to  study,  for  more  rational  enjoy- 
ments, for  a  more  dignified  reputation.  Whether  or  no  I  judged  well 
for  my  happiness  must  be  left  to  the  event  to  decide,  and  this  depends 
also  in  a  great  degree  upon  my  own  taste  and  disposition.  This  is 
certain  that  the  mere  men  of  business  and  pleasure,  who  estimate  hap- 
piness by  the  income,  and  by  the  splendid  luxuries  of  city  life,  all  con- 
demned my  choice  as  mad  and  absurd.  But  men  of  patriotism  and 
reflection,  who  thought  less  of  riches  and  more  of  character,  if  they 
did  not  approve,  were  yet  more  slow  to  condemn.  My  present  impres- 
sion is  so  unfavorable  to  public  liberality  and  public  justice  and  to  the 
belief  of  the  eventual  success  and  credit  of  firm  and  upright  govern- 
ment, that  I  think  it  questionable  whether  I  calculated  well  or  ill  when 
I  abandoned  the  office  of  recorder  and  master  and  took  that  of  judge." 
'"Judge  Hobart,  who  for  twenty  years  had  aided  to  give  the 
decisions  of  the  court  such  strength  and  character  as  they  had,  was 
not  a  lawyer — he  had  not  been  educated  to  the  profession  of  law" 
(D.  D.  Barnard  on  Ambrose  Spencer,  p.  47). 


STATE   OF   NEW   YORK  133 

the  Sixth  Circuit,  where  he  had  made  a  splendid  record.  In 
1845  he  was  nominated  by  President  Tyler  to  the  supreme 
bench  at  Washington/  where  he  remained  until  his  resig- 
nation in  1872,  when  he  was  succeeded  by  Ward  Hunt,  who 
had  sat  in  the  New  York  Commission  of  Appeals.  Esek 
Cowen  succeeded  Sutherland,  in  1835,  and  Greene  C.  Bron- 
son  took  his  seat  in  the  court  in  the  same  year,  upon  Chief 
Justice  Savage's  resignation.  Samuel  Beardsley,  who  ob- 
tained Bronson's  place  as  attorney  general,  was  subsequently 
appointed  to  the  supreme  court.  The  office  of  attorney 
general  was  often  the  avenue  to  judicial  distinction.  Down 
to  1845,  fou^  of  the  State  supreme  court  justices  had  been 
honored  with  seats  in  the  supreme  court  of  the  United 
States — John  Jay,  Brockholst  Livingston,  Smith  Thomp- 
son, and  Samuel  Nelson.  Since  that  date  the  State  has 
given  to  the  highest  Federal  tribunal  Ward  Hunt,  Rufus 
W.  Peckham  and  Charles  E.  Hughes.^  Robert  R.  Living- 
ston was  Jefferson's  minister  to  France  in  1801,  and  Marcy 
received  the  portfolio  of  war  in  Polk's  cabinet.  The  circuit 
judges  were  notable  jurists — Ogden  Edwards,  Samuel  A. 
Betts,  William  A.  Duer,  Reuben  H.  Walworth,  afterward 
chancellor,  Nathan  Williams,  a  brilliant  advocate,  William 
Kent,  the  great  chancellor's  son  and  biographer,  Charles  H. 
Ruggles,  Hiram  Denio  and  Amasa  J.  Parker,  the  last  three 
of  whom  afterward  sat  in  the  Court  of  Appeals.  The  recol- 
lection of  such  distinguished  men  and  of  their  famous  suc- 
cessors should  arouse  the  bar  to  a  sense  of  the  duty  of 
always  maintaining  a  high  standard  in  the  judiciary,  for  the 


*  Tyler  had  first  tendered  to  Silas  Wright,  then  a  senator  at 
Washington,  the  vacant  seat  of  the  late  Smith  Thompson,  but  as 
Wright  declined  it,  he  offered  it  to  Chancellor  Walworth.  The  senate 
refused  to  confirm  Walworth,  and  Tyler's  next  choice  was  Judge 
Nelson. 

''Roscoe  Conkling,  who  was  appointed  by  President  Grant,  never 
qualified.  Associate  Justice  Samuel  Blatchford  went  from  the  United 
States  Circuit  Court. 


134  CONSTITUTIONAL    HISTORY 

bar  is  no  less  potent  to-day  than  formerly.  It  has  only  to 
make  its  influence  felt. 

The  old  superior  court  of  the  city  of  New  York,  which 
had  been  organized  in  1828,  was  one  of  the  tribunals  that 
derived  advantage  from  the  new  system  of  appointment. 
Governor  Pitcher  appointed  to  the  chief  judgeship  Samuel 
Jones,  once  chancellor  of  the  State,  and  as  associate  judges, 
Josiah  Ogden  Hoffman,  a  former  attorney-general  and  ex- 
member  of  Congress,  and  Thomas  J.  Oakley,  who  had  been 
surrogate  of  Dutchess  county,  attorney-general  and  an  an- 
tagonist of  Wirt  and  Webster  in  the  case  of  Gibbons  v. 
Ogden.  Oakley  became  chief  judge  when  Jones  resigned 
in  1847  to  enter  the  court  of  appeals.  The  superior  court, 
the  judges  in  which  became  elective  in  1847,  was  enlarged 
in  1849,  ^^^  John  Duer  became  one  of  its  members.  Lewis 
H.  Sand  ford,  William  W.  Campbell,^  Joseph  S.  Bos  worth, 
Murray  Hoffman,  Lewis  B.  Woodruff  and  Edwards  Pierre- 
pont,  not  to  prolong  the  list,  also  sat  in  that  court.  A  bench 
of  this  distinction  naturally  attracted  a  great  volume  of  im- 
portant litigations,  in  which  eminent  members  of  the  city 
bar  participated. 

The  new  judicial  system  was  in  many  features  a  com- 
promise. As  might  have  been  anticipated,  it  failed  to  give 
full  satisfaction,  and  Governors  DeWitt  Clinton,  Marcy  and 
Seward  advocated  reforms  in  it  in  their  various  messages  to 
the  legislature.  In  the  message  of  1841,  Governor  Seward 
set  forth  that  the  administration  of  justice  was  retarded  and 
made  oppressive  by  the  defective  organization  of  the  courts ; 
that  the  court  of  chancery  was  incapable  of  performing 
its  duties ;  that  causes  remained  on  its  calendar  two  years ; 
that  its  patronage  was  too  great  to  be  reposed  in  a  single 
judge;  that  the  supreme  court  was  in  arrears  in  its  busi- 
ness ;  that  fees  were  excessive  and  legal  forms  and  proceed- 


*  Father  of  Douglas  Campbell,  author  of  "The  Puritan  in  Hol- 
land, England  and  America."  Judge  Campbell  himself  wrote  the  "An- 
nals of  Tryon  County." 


STATE   OF    NEW   YORK  135 

ings  unnecessarily  tedious  and  prolix.  The  necessity  of 
reorganizing  the  courts  and  simplifying  judicial  procedure 
was  a  leading  motive  to  the  call  of  the  Convention  of  1846. 

The  supreme  court  was  first  established  in  1691,  but  the 
court  of  common  pleas  of  the  city  of  New  York  is  far  older, 
and  traces  its  lineage  through  the  mayor's  court  back  to  the 
Dutch  period/  In  every  town  and  village  in  Holland,  long 
prior  to  the  settlement  of  New  Amsterdam,  there  had  been 
a  local  tribunal  combining  dual  functions, — judicial  and 
municipal.  This  court  consisted  of  the  burgomaster  and 
schepcns,  usually  elected,  the  former  a  sort  of  mayor,  and 
the  latter  having  a  resemblance  to  aldermen,  and  with  these 
were  associated  an  official  known  as  a  schont,  who,  besides 
acting  as  a  prosecuting  officer,  performed  some  of  the  duties 
of  a  sheriff.  Local  courts  of  this  description,  from  which 
appeals  lay  to  the  supreme  council  of  the  province,  may  be 
traced  as  far  back  as  1650,  despite  the  disposition  often 
evinced  by  the  governors  to  assume  their  powers.  The 
'Vorshipful  court  of  the  schout,  burgomaster  and  schep- 
ens,"  with  its  remarkable  knowledge  of  Dutch  law,  which 
Stuyvesant  in  one  of  his  proclamations  contemptuously 
styled  the  "little  bench  of  justice,"  was  in  the  main  permit- 
ted to  exercise  its  judicial  functions  without  interference  by 
the  governor.  It  acted  also  as  a  court  of  admiralty  and  as 
a  court  of  probate.  It  had  its  criminal  side,  the  schout  act- 
ing as  a  district  attorney.  Similar  courts  existed  at  Breuck- 
len,  Jamaica,  Albany,  and  other  places,  although  in  those 
portions  of  the  province  in  which  the  patroons  enjoyed 
manorial  privileges  the  patroons'  court  exercised  practically 
all  judicial  power,  as  they  were  authorized  to  establish  with- 
in their  territory  courts  of  justice  with  unlimited  civil  and 
criminal  jurisdiction,  with  the  right  of  appeal  to  the  director 
general  and  council  of  New  Amsterdam. 

When  New  Amsterdam  surrendered  to  the  English  in 


'Judge  Charles  P.  Daly,  in  an  Introduction  to  i  E.  D.  Smith. 


136  CONSTITUTIONAL    HISTORY 

1664,  the  judicial  system  of  the  province  consisted  of  these 
local  courts,  the  patroon  courts,  and  a  supreme  or  appellate 
court  composed  of  the  governor  and  council.  The  terms  of 
capitulation  preserved  the  tenure  of  the  inferior  civil  offi- 
cers and  magistrates,  and  the  administration  of  justice  in 
the  court  of  the  burgomaster  and  schepens  continued  under 
English  rule  almost  as  though  there  had  been  no  change  of 
government.  The  Duke's  Laws  provided  for  justices  of  the 
peace  in  the  various  towns,  and  courts  of  sessions  composed 
of  all  the  justices  living  within  any  one  of  the  three  "rid- 
ings" into  which  the  province  was  divided.  These  courts 
had  both  civil  and  criminal  jurisdiction,  and  were  also  courts 
of  probate.  From  the  judgment  of  a  court  of  sessions  an 
appeal  lay  to  the  court  of  assize,  then  the  highest  tribunal  in 
the  province,  held  by  the  governor  and  his  council.^ 

On  June  12,  1665,  Nicolls  by  proclamation  abolished  the 
court  of  burgomaster  and  schepens^  and  conferred  its  pow- 
ers upon  the  mayor,  aldermen  and  sheriff,  which  became  the 
corporate  name  of  the  city  of  New  York.^  The  magis- 
trates who  formed  the  previous  tribunal  were  reappointed, 
and  the  court  of  burgomaster  and  schepens  became  the 
mayor's  court,  which  title  it  held  until  1821.  This  court 
was  distinctly  recognized  by  the  charter  granted  to  the  city 
by  Governor  Dongan,  the  charter  providing  that  the  mayor, 
recorder,  and  aldermen  might  hold  a  court  of  common  pleas 
within  the  city  every  Tuesday  for  the  trial  of  all  actions  of 
debt,  trespass,  or  trespass  upon  the  case,  detinue,  ejectment, 
or  other  personal  action  according  to  the  rules  of  the  com- 
mon law  and  the  acts  of  the  general  assembly  of  the  prov- 
ince. The  mayor  or  recorder,  or  three  or  more  alder- 
men, not  exceeding  five,  were  clothed  with  the  powers  of 
justices  of  the  peace,  and  might  hear  and  determine  all 
manner  of  petty  larcenies,  riots,  routs,  oppression  and  ex- 


*Out  of  this  court  grew  the  colonial  legislature,  but  the  legisla- 
tive powers  and  the  judicial  functions  were  not  allowed  to  conflict. 
"City  Charter  and  Kent's  Notes,  p.  108. 


STATE   OF   NEW    YORK  137 

tortions  and  other  trespasses  and  offences  in  the  city.  The 
charter  effected  a  distinct  separation  between  the  legislative 
and  judicial  functions  of  the  mayor,  recorder,  and  alder- 
men, the  common  council  having  the  legislative  power,  the 
mayor's  court  having  jurisdiction  of  civil  actions,  and  the 
court  of  sessions,  consisting  of  the  mayor,  recorder,  and 
aldermen,  having  criminal  jurisdiction  exclusively.  The 
mayor's  court  was  afterward  stripped  of  its  probate  and 
prerogative  powers.  Prior  to  the  Revolution,  a  judge  of 
probate  was  appointed  for  the  province,  and  by  the  act  of 
1778  all  powers  which  had  been  vested  in  the  governor  of 
the  colony  as  judge  in  probate  matters  were  vested  there- 
after in  the  court  of  probates,  and  in  1787  an  act  was 
passed  authorizing  the  governor,  with  the  consent  of  the 
council  of  appointment,  to  commission  a  surrogate  for 
every  county. 

The  county  courts  were  recognized  by  the  first  constitu- 
tion, and  were  reorganized  after  the  ratification  of  the 
second.  The  mayor's  court  was  continued,  the  mayor  and 
the  recorder  sitting  in  it,  and  also  in  the  court  of  sessions. 
Such  distinguished  mayors  as  Edward  Livingston  and 
DeWitt  Clinton,  and  such  eminent  recorders  as  Samuel 
Jones,  James  Kent,  Maturin  Livingston,  Josiah  Ogden 
Hoffman,  and  Peter  A.  Jay  presided  at  the  trial  of  causes 
in  that  tribunal.  The  mayor's  court  had  a  brilliant  history, 
and  was  hardly  exceeded  in  importance  by  the  supreme 
court  of  the  State.  During  the  early  years  of  the  nine- 
teenth century,  renowned  judges  presided  in  the  mayor's 
court,  and  the  greatest  of  lawyers  practiced  there, — the 
most  notable  being  Alexander  Hamilton,  Aaron  Burr,  Rob- 
ert Troup,  Edward  and  Brockholst  Livingston,  Egbert  Ben- 
son, Morgan  Lewis,  Josiah  Ogden  Hoffman,  and  John  Jay. 
The  celebrated  cause  of  Rutgers  v.  Waddington,  perhaps  the 
first  in  the  history  of  the  country  to  involve  discussion  of  the 
principles  of  constitutional  law  and  the  law  of  nations,  and 
one  of  the  first  in  which  a  State  law  was  adjudged  invalid, 


138  CONSTITUTIONAL   HISTORY 

was  tried  in  that  court  before  Judge  James  Duane.  The 
importance  of  the  tribunal  led  in  1821  to  its  reorganization 
under  the  name,  the  court  of  common  pleas  for  the  city  and 
county  of  New  York,  with  a  first  judge  to  hold  office  during 
good  behavior  or  until  he  should  attain  the  age  of  sixty 
years.  When,  by  the  constitution  of  1822,  power  of  ap- 
pointment of  judicial  officers  was  lodged  in  the  governor, 
the  tenure  of  office  of  the  first  judge  was  changed  to  five 
years,  but  the  mayor,  recorder,  and  aldermen  still  sat  as 
justices.  John  T.  Irving,  a  brother  of  Washington  Irving, 
was  appointed  first  judge  by  Governor  Yates.  In  1834, 
owing  to  the  growth  of  business,  the  office  of  associate 
judge  was  created,  and  Michael  Ulshoeffer,  the  distin- 
guished member  of  assembly  in  1820,  who  crossed  swords 
with  Chancellor  Kent  about  the  convention  bill  of  that  year, 
was  appointed  to  the  position  of  associate  judge  with  all 
the  powers  of  the  first  judge.  After  the  adoption  of  the 
constitution  of  1847  the  judges  of  the  court  became  elective. 
It  had  a  long  and  distinguished  history,  for  besides  the 
mayors  and  recorders  who  have  presided  in  it,  may  be  men- 
tioned John  T.  Irving  and  Michael  Ulshoeffer,  the  late 
Daniel  P.  Ingraham  (father  of  Presiding  Justice  George 
L.  Ingraham),  Charles  P.  Daly,  and  Lewis  B.  Woodruff. 

The  Convention  of  1821  was  an  unqualified  victory  for 
popular  rights.  It  enfranchised  a  large  and  deserving  class 
of  citizens.  It  made  the  governor  a  real  power.  It  differen- 
tiated the  government  more  clearly  into  three  departments, 
— executive,  legislative,  and  judicial, — all  of  which  were 
fused  under  the  first  charter.  It  gave  the  people  control 
over  the  senate  as  well  as  the  assembly.  While  it  retained 
the  framework  of  the  old  judicial  fabric,  it  increased  the 
judicial  force.  It  incorporated  into  the  organic  law  a  bill 
of  rights.  But  its  report  was  not  unanimous,  nine  of  the 
delegates  voting  against  it. 

The  constitution  was  submitted  as  a  whole,  for  reasons 
stated  in  the  address  of  the  delegates  to  the  people,  Novem- 


STATE   OF   NEW   YORK  139 

ber  10,  1 82 1,  said  to  have  been  composed  by  Erastus  Root. 
This  course  was  adopted  "from  a  sense  of  the  great  diffi- 
culty, if  not  impracticabiHty,  of  submitting  to  the  people  for 
their  ratification,  in  separate  articles,  the  various  amend- 
ments which  have  been  adopted  by  majorities  of  the  con- 
vention. This  difficulty  is  very  much  increased  by  the  re- 
flection that  the  adoption  of  some  articles,  and  the  rejection 
of  others,  might  greatly  impair  the  symmetry  of  the  whole. 
The  convenience  of  having  the  amendments  incorporated 
with  those  parts  of  the  constitution  which  are  to  remain 
unaltered,  will  readily  be  perceived.  We  therefore  submit 
to  the  people  the  choice  between  the  old  and  the  amended 
constitution."  The  submission  took  place  January  15-16-17, 
1822.  By  the  act  of  March  13,  1821,  recommending  the 
convention,  every  person  entitled  to  vote  for  delegates  was 
made  eligible  to  vote  upon  the  convention's  work.  The 
returns,  as  filed  in  the  office  of  the  secretary  of  state  in 
February,  showed  that  there  were  75,422  votes  for  the  con- 
stitution, and  41,497  against  it.  By  it,  as  Governor  Yates 
said  in  his  message  to  the  legislature  in  January,  1823,  "the 
government  had  been  adapted  to  the  feelings  and  views  of 
the  community,  the  only  proper  standard  by  which  a  good 
government  can  be  formed." 

The  history  of  this  period  would  be  incomplete  without 
brief  reference  to  the  revision  of  the  statutes  of  the  State, 
necessitated  in  large  measure  by  radical  changes  of  polity 
in  the  new  constitution.  The  revisers  named  in  the  statute 
authorizing  the  revision  (April  21,  1825)  were  John  Duer, 
Benjamin  F.  Butler,  and  Henry  Wheaton,  two  of  whom  had 
been  leading  members  of  the  convention.  With  them  for  a 
time  was  associated  Erastus  Root,  "but,  as  an  active  and 
veteran  party  leader  and  an  able  advocate  of  the  older  type, 
he  was  neither  adapted  nor  inclined  to  the  work  of  a  pio- 
neer in  legal  reform."  Wheaton,  in  April,  1827,  became 
charge  d'affaires  of  the  United  States  to  Denmark,  and  to 
his  place  Governor  Clinton  appointed  John  C.  Spencer,  son 


I40  CONSTITUTIONAL   HISTORY 

of  Chief  Justice  Ambrose  Spencer.  In  the  interval  that  had 
elapsed  since  the  passage  of  the  statutes,  a  pro  jet  or  outline 
of  revision  had  been  prepared  by  Duer  and  Butler,  and  upon 
its  lines  the  revision  was  subsequently  executed.  This  mon- 
umental undertaking,  comparable  with  the  work  entrusted 
by  Justinian  to  Tribonian  and  his  associates  and  with  the 
codification  of  French  law  by  Napoleon  when  First  Consul, 
antedated  all  efforts  in  Great  Britain  for  a  scientific  and 
orderly  arrangement  of  jurisprudence.  DeWitt  Clinton, 
with  his  comprehensive  cast  of  mind,  had  in  1825  not  only 
urged  a  revision  of  the  statutes,  but  had  also  favored  the 
preparation  of  a  complete  code  of  law,  and  Edward  Living- 
ston had  drafted  for  the  State  of  Louisiana  a  code  largely 
based  upon  the  Code  Napoleon.  In  England  the  inertia  of 
the  legal  profession  still  tolerated  the  inconsistencies  and 
intricacies  of  the  common  law  system,  whose  criminal  juris- 
prudence was  a  sort  of  Draconic  code,  and  it  is  to  the  merit 
of  New  York  that,  while  Sir  Samuel  Romilly,  Bentham, 
Brougham,  and  Austin  were  engaged  in  exposing  the  de- 
fects of  the  English  system,  the  legislature  should  have 
authorized  an  enterprise  fraught  with  such  vast  conse- 
quences to  jurisprudence  in  this  State  and  in  other  States  of 
the  Union. 

The  fundamental  idea  of  the  revisers  was  clarification 
and  simplification  of  law,  and  its  emancipation  from  the 
many  harsh  and  almost  uncivilized  rules  of  the  common 
law.  They  proposed  to  reduce  the  volume  of  law  by  the 
employment  of  concise,  simple,  and  intelligible  language, 
and  the  elimination  of  "uncertainties  and  obscurities  arising 
from  the  long  and  involved  sentences  and  from  the  intri- 
cate and  obsolete  diction"  in  which  the  law  had  been  writ- 
ten, and  thus  facilitate  acquisition  of  knowledge  of  it  as  a 
science.  It  was  their  hope  also  that  the  successful  execu- 
tion of  their  plan  might  lead  other  States  to  emulate  New 
York's  example.  The  revision  as  outlined  subdivided  the 
statutes  under  several  heads, — one  relating  to  the  territory, 


STATE   OF   NEW   YORK  141 

political  divisions,  civil  polity,  and  internal  administration 
of  the  State;  another  to  the  acquisition,  enjoyment,  and 
transmission  of  property,  to  domestic  relations  and  private 
rights;  a  third  branch  concerned  itself  with  the  judiciary 
and  procedure  in  civil  causes ;  a  fourth  embraced  the  whole 
subject  of  crime  and  punishment,  criminal  procedure,  and 
prison  discipline;  and  the  last  dealt  with  public  laws  of  a 
local  and  miscellaneous  character,  among  them  the  laws  of 
the  city  of  New  York,  acts  incorporating  cities  and  villages, 
and  other  acts  of  incorporation.  This  comprehensive 
scheme  was  executed  with  remarkable  celerity,  and  at  an 
expense  so  small  that  the  labors  of  the  revisers  might  be 
said  to  have  been  almost  gratuitous. 

The  complexities  of  the  law  of  real  estate,  with  its  in- 
numerable subtleties  and  refinements,  the  outgrowth  of  cen- 
turies, were  supplanted  by  a  simple  and  comprehensive  code 
containing  few  radical  departures  from  the  prevailing  sys- 
tem, and  perhaps  no  portion  of  the  undertaking  of  the  re- 
visers was  more  splendidly  accomplished.  Almost  un- 
changed has  it  withstood  the  criticism  of  generations.^^ 
Chancellor  Kent,  who  declined  an  appointment  *as  reviser, 
declared  in  an  eloquent  tribute  to  the  revisers'  work  that 
"much  of  the  labor,  the  plan  and  order  of  the  work,  the 
correctness  of  its  style,  the  learning  of  the  notes,  the  mar- 
ginal references,  and  the  admirable  index,  should  be  as- 
cribed to  the  skill  and  matchless  assiduity  of  Mr.  Butler."  ^^ 
The  appearance  of  the  revised  statutes  was,  as  William 
Allen  Butler  has  felicitously  said,  "an  event  of  the  first 
magnitude,"  coming  almost  as  a  surprise  to  "the  profession 


"The  lethargy  of  the  professional  mind  is  amusingly  described 
by  Mr.  William  Allen  Butler  in  his  monograph  "The  Revision  of  the 
Statutes  of  the  State  of  New  York  and  the  Revisers,"  1889,  48,  in  the 
story  told  about  Peter  A.  Jay  and  the  abolition  of  the  rule  in  "Shelley's 
Case." 

"Id.,  page  52.  See  also  I,  Revised  Statutes  of  New  York,  ist 
ed. ;  Revisers'  Reports  and  Notes,  vol.  V,  New  York  Statutes  at  Large, 
edited  by  Hon.  John  W.  Edmonds, 


142  CONSTITUTIONAL   HISTORY 

at  a  time  when  the  earlier  agitation  of  the  question  of  re- 
form in  England  had  demonstrated  the  need  of  change  and 
improvement,  without  introducing  any  new  methods  to 
supersede  old  abuses." 

The  attempt  in  the  revised  statutes  to  determine  the 
boundaries  of  the  State  aroused  anew  the  claims  of  New 
Jersey  to  a  portion  of  the  territory  of  New  York,  and  led 
to  a  treaty  between  the  two  States. 

The  controversy  between  New  York  and  New  Jersey 
dated  from  the  colonial  period.  The  Dongan  Charter, 
granted  by  James  II.  to  the  city  of  New  York  in  1686,  con- 
veyed ownership  of  and  jurisdiction  over  all  the  waters  of 
the  Bay  of  New  York  and  of  the  Hudson  River  west  of 
Manhattan  Island,  and  south  of  Spuyten  Duyvil  Creek  to 
low-water  mark  on  the  New  Jersey  shore.  According  to 
the  Montgomery  Charter  of  1730,  the  territorial  limits  of 
the  city  of  New  York  extended  across  the  North  River  to 
low-water  mark  on  its  west  side.  Statutes  passed  both  by 
the  colonial  and  the  State  legislature  acknowledged  and 
confirmed  these  rights  of  the  city.  The  colonial  legislature 
passed  such  an  act  on  October  i,  1691 ;  acts  of  the  State 
legislature  followed  on  October  14,  1732,  March  7,  1788, 
and  February  28,  1791.  The  city's  jurisdiction  over  Bed- 
loe's  Island  and  other  islands  west  of  the  middle  line  of 
the  bay  was  further  acknowledged  by  statutes  passed  in 
1800,  1803,  1813,  1825,  and  1829.  New  York's  claim  may 
not  have  been  always  unequivocally  asserted,  but  it  was 
never  abandoned.  New  Jersey  consistently  disputed  New 
York's  contention. 

In  1807  commissioners  were  appointed  by  the  two  States 
to  settle  the  dispute,  but  they  separated  without  reaching 
any  result.  In  June,  1829,  New  Jersey  filed  a  bill  in  the 
supreme  court  of  the  United  States  against  the  State  of 
New  York  to  have  the  boundary  line  determined,  but  the 
suit  was  dismissed  (New  York  State  refusing  to  appear) 
'because  of  agreement  upon  the  treaty  of  1834.     Under 


STATE   OF    NEW    YORK  143 

laws  passed  by  the  respective  States  authorizing  such  action, 
the  governor  of  each  State  appointed  three  commissioners 
to  negotiate  and  agree  with  a  similar  number  of  commis- 
sioners appointed  by  the  other  State  "respecting  the  terri- 
torial limits  and  jurisdiction"  of  the  two  States.  The  com- 
missioners on  behalf  of  New  York  were  Benjamin  F.  But- 
ler, who  had  recently  completed  his  work  of  revision  of  the 
statutes,  Peter  Augustus  Jay,  and  Henry  Seymour  (father 
of  Horatio  Seymour) ;  on  the  part  of  New  Jersey,  Theo- 
dore Frelinghuysen,  James  Parker,  and  Lucius  Q.  C.  Elmer. 
The  agreement  or  treaty  was  signed  by  the  commissioners 
on  September  16,  1833,  was  confirmed  by  New  York  on 
February  5,  1834  (Laws  of  1834,  Chapter  8,  page  8),  and 
by  New  Jersey  on  February  26,  1834  (Laws  of  1834,  page 
118),  and  was  approved  by  Congress  by  act  of  June  28, 
1834  (Chapter  126,  4,  Statutes  at  Large,  708). 

This  treaty  was  construed  in  1862  in  State  v.  Babcock 
(30  N.  J.  Law,  29),  and  in  1867  in  People  of  the  State  of 
New  York  v.  Central  Railroad  Company  of  New  Jersey 
(42  N.  Y.,  283).  It  is  an  interesting  fact  that  Judge  Elmer, 
author  of  the  opinion  in  the  New  Jersey  case,  who  had 
been  one  of  the  commissioners  for  that  commonwealth,  took 
a  more  favorable  view  of  the  rights  acquired  by  New  York 
than  did  the  majority  of  the  judges  of  the  court  of  appeals. 
Exclusive  jurisdiction  not  onl}^  over  the  water  but  over 
the  land  to  the  low-water  line  on  the  Jersey  shore  was,  in 
his  opinion,  ''in  plain  and  unmistakable  language,  granted  to, 
or  rather  acknowledged  to  belong  to  the  State  of  New 
York."  The  treaty  has  recently  been  under  consideration 
by  the  supreme  court  of  the  United  States  in  Central  Rail- 
road Company  of  New  Jersey  v.  The  Mayor  and  Aldermen 
of  Jersey  City  (209  U.  S.,  473),  in  which  the  court  upheld 
Nev/  Jersey's  contention  that  she  had  the  right  to  tax  lands 
under  water  lying  between  the  middle  of  New  York  Bay 
and  low-water  line  on  her  own  shore. 

Slaves  were  familiar  figures  in  New  York  households  in 


144  CONSTITUTIONAL   HISTORY 

the  earlier  part  of  the  nineteenth  century.  The  last  vestige 
of  this  "institution"  disappeared  with  the  emancipation  of 
July  4,  1827.  A  few  years  afterward,  the  State  abolished 
imprisonment  for  civil  debt  (1831)/^  inaugurated  needed 
reforms  in  prison  discipline,  and  expanded  its  common- 
school  system. 

Ten  separate  propositions  of  amendment  to  the  second 
constitution  were  at  different  times  submitted  by  the  legis- 
lature to  the  voters  of  the  State,  six  of  which  were  adopted. 
The  most  important  were  the  amendment  of  1826,  abol- 
ishing all  property  qualifications  for  white  voters;  the 
amendment  of  1834,  giving  the  electors  of  the  city  of  New 
York  qualified  to  vote  for  other  municipal  officers  the  right 
to  vote  for  mayor,  the  appointment  of  that  official  thus 
being  taken  away  from  the  common  council  of  that  city; 
and  the  extension  in  1838  of  a  like  privilege  to  voters  in  all 
other  cities  of  the  State. 


"This  was  the  outcome  of  the  "Stilwell  Bill,"  which  had  been 
urged  by  a  petition  from  New  York  City  and  referred  to  a  select  com- 
mittee of  which  Stilwell  was  made  chairman.  Weed  declares  that  the 
bill  elicited  "long  and  animated  debate  in  both  houses."  It  was  seri- 
ously argued  in  opposition  that  if  the  old  law  were  repealed  poor  men 
would  no  longer  be  able  to  obtain  credit.  "Dickens  might  have  found 
in  any  of  our  county  jails  materials  as  touching  as  those  upon  which 
the  story  of  'Little  Dorrit'  was  founded."  Thurlow  Weed,  Auto- 
biography, I,  379,  380. 


STATE   OF    NEW    YORK  145 


CHAPTER   VIII 

CANALS — TOPOGRAPHY  OF  NEW  YORK  STATE  AND  EARLY  EF- 
FORTS FOR  A  CANAL  FROM   THE  HUDSON  TO  THE  GREAT 

LAKES CONSTRUCTION    OF   ERIE    CANAL   AUTHORIZED 

LATERAL  CANALS STATE  AID  TO  RAILROADS ERIE  EN- 
LARGEMENT     PROPOSED INTERNAL      IMPROVEMENTS 

PUBLIC   DEBTS STOPPAGE  OF  WORK   UPON   THE   CANALS 

ACT  OF  1842  AND  ITS  POLICY ATTEMPT  AT  REPEAL 

GOVERNOR  WRIGHT^S  VETO  AND  ITS  EFFECT  UPON  HIS 
POLITICAL  CAREER PUBLIC  DEMAND  FOR  A  CONSTITU- 
TIONAL CONVENTION  AND  FOR  CONSTITUTIONAL  RESTRIC- 
TIONS UPON  STATE  DEBTS  AND  PROHIBITION  OF  LOAN  OF 
STATE  CREDIT  TO  PRIVATE  ENTERPRISES^  AND  FOR  JUDI- 
CIAL REFORM PASSAGE  OF  LAW  RECOMMENDING  A  CON- 
STITUTIONAL CONVENTION — VOTE  FOR  A  CONVENTION 

THE  APPORTIONMENT  OF  1846. 

The  constitution,  which  took  effect,  as  a  whole,  on  Jan- 
uary I,  1823,  remained  in  existence  for  twenty- four  years. 
During  a  large  part  of  the  time,  the  State  enjoyed  almost 
unexampled  prosperity.  Men  of  ability  and  sagacity,  most 
of  whom  afterward  acquired  national  reputation,  filled  its 
gubernatorial  chair.  Its  judiciary  numbered  some  of  the 
most  exalted  names  in  the  annals  of  its  jurisprudence.  The 
advancement  of  the  State  was,  however,  largely  due  to  its 
canal  system,  which  attracted  immigration,  augmented  the 
revenues  of  the  State,  imparted  value  to  the  land  in  its 
middle  tier  of  counties,  and  summoned  villages  and  towns 
into  life.  The  Appalachian  range,  which  in  the  States  south 
of  New  York  raises  a  barrier  between  the  Atlantic  Ocean 


146  CONSTITUTIONAL   HISTORY 

and  the  Mississippi  Valley,  falls  away  almost  to  a  level  be- 
tween Lake  Erie  and  the  Hudson  River.  That  nature  had 
made  it  possible  for  the  river  and  the  Great  Lakes  to  be 
united  by  a  canal  through  New  York  State,  whereby 
commerce  might  be  floated  to  and  from  the  great  inland 
water  system  and  the  ocean,  had  impressed  the  imagination 
of  far-seeing  men  even  in  the  eighteenth  century,  but  it  was 
reserved  for  DeWitt  Clinton  to  give  such  conceptions  prac- 
tical form.  Clinton  himself,  writing  under  the  nom  de 
plume  "Tacitus,"  declared  that  the  idea  of  a  connection 
would  almost  naturally  occur  to  the  visitor  to  the  western 
country.  The  merit  lay  in  the  initiation  of  a  procedure  to 
carry  it  into  execution.  Here  Clinton  was  concededly  pre- 
eminent. The  defeat  of  his  aspirations  for  the  presidency 
kept  him  at  home  and  gave  him  opportunity  to  devote  his 
zeal  and  talents  to  the  cause  of  the  canals. 

The  value  of  a  canal  as  a  unifying  force,  linking  the 
States  into  closer  relationship,  was  appreciated  by  Wash- 
ington. The  success  of  Fulton's  "Clermont,"  in  1807,  w^as 
also  a  factor  in  canal  development,  as  by  shortening  the 
sailing  time  between  New  York  and  Albany  it  aroused  de- 
sire in  the  newer  regions  of  the  State  for  quicker  transpor- 
tation to  the  seaboard.^  In  1808  the  legislature  appointed  a 
joint  committee  to  "take  into  consideration  the  propriety 
of  exploring  and  causing  an  accurate  survey  to  be  made  of 
the  most  eligible  and  direct  route  for  a  canal  to  open  a  com- 
munication between  the  tide  waters  of  the  Hudson  River 
and  Lake  Erie,"  and  the  committee  was  expected  to  obtain 
aid  from  Congress.  By  a  concurrent  resolution,  March  13 
and  15,  1810,  the  senate  and  the  assembly  appointed  a  com- 
mission to  explore  a  route  from  the  river  to  Lake  Ontario 
and  Lake  Erie,  procure  surveys,  and  report  estimates.  This 
commission,  of  which  Gouverneur  Morris  was  chairman, 
made  a  report,  largely  his  draft,   estimating  the  cost  at 

*  "Artificial  Waterways  and  Their  Development,"  A.  B.  Hepburn, 
2Z. 


STATE   OF   NEW   YORK  147 

$5,000,000.  A  new  commission  appointed  under  an  act 
passed  April  8,  181 1,  to  provide  for  the  improvement  of  the 
internal  navigation  of  the  State,  vainly  sought  to  enlist  the 
aid  and  co-operation  of  Congress.  Upon  this  body  served 
ex-Chancellor  Robert  R.  Livingston,  Robert  Fulton,  Peter 
B.  Porter,  Gouvemeur  Morris,  and  DeWitt  Clinton.  Dur- 
ing the  War  of  181 2  the  canal  enterprise  naturally  lan- 
guished, but  at  its  conclusion  fresh  energy  was  infused  into 
the  project.  Petitions  were  presented  to  the  legislature  of 
18 16  by  many  of  the  leading  towns  in  the  western  and 
northern  sections  of  the  State,  where  the  sentiment  for  the 
canal  was  always  powerful,  and  an  eloquent  memorial  con- 
taining a  fund  of  information  obtained  from  personal  in- 
spection of  the  route,  said  to  have  been  almost  entirely  the 
work  of  DeWitt  Clinton,  was  submitted  on  behalf  of  the 
merchants  of  New  York  City.^  The  assembly  proposed  to 
equip  a  commission  to  begin  work  at  once,  but  the  senate, 
at  the  instance  of  Van  Buren,  limited  its  functions  to  pre- 
liminary investigation  and  report.  The  new  commission, 
with  Clinton  as  its  president,  reported  to  the  legislature  at 
an  extra  session  in  November,  181 6,  and  in  a  later  com- 
munication advocated  the  construction  of  the  Champlain 
Canal  as  well.  The  legislature,  by  act  Chapter  262,  Laws 
of  18 1 7,  the  passage  of  which  Senator  Van  Buren  aided  by 
his  talents  and  influence,  continued  the  former  commission- 
ers and  authorized  the  construction  of  the  Erie,  Oswego, 
and  Champlain  canals.  Notwithstanding  the  apathy  shown 
by  Congress  in  181 1,  it  was  still  hoped  that  the  general  gov- 
ernment might  contribute  to  the  canal  fund,  but  it  is  to  the 
credit  of  the  State  that  this  splendid  achievement,  ere  long 

'"It  may  be  confidently  asserted,"  said  the  memorial,  "that  this 
canal,  as  to  the  extent  of  its  route,  as  to  the  countries  which  it  con- 
nects, and  as  to  the  consequences  which  it  will  produce,  is  without  a 
parallel  in  the  history  of  mankind.  It  remains  for  a  free  State  to 
create  a  new  era  in  history,  and  to  erect  a  work  more  stupendous,  more 
magnificent  and  more  beneficial  than  has  been  achieved  by  the  human 
race."    Alexander,  "A  Political  History  of  New  York,"  I,  p.  244. 


148  CONSTITUTIONAL    HISTORY 

destined  to  become  of  national  significance,  was  executed 
solely  through  its  own  resources.  Despite  Clinton's  me- 
morial, despite  Elisha  Williams'  prediction  of  the  benefits 
of  the  canal  to  the  metropolis,  and  despite  Van  Buren's 
advocacy,  all  the  senators  from  New  York  City  were 
against  the  bill,  and  a  large  majority  of  the  city's  represen- 
tatives in  the  assembly  also  were  hostile.  ''From  the  outset, 
Tammany,  by  solemn  resolution,  had  denounced  the  canal 
project  as  impractical  and  chimerical,  declaring  it  fit  only 
for  a  ditch  to  bury  Clinton."  ^  Of  the  eighteen  senators 
who  favored  the  bill,  five  were  anti-Clintonians  whose  votes 
were  mainly  ascribable  to  Van  Buren's  influence.  The 
ground  for  the  construction  of  the  Erie  Canal  was  broken 
at  Rome,  July  4,  18 17,  in  the  ^presence  of  Clinton,  who  in 
the  spring  had  been  triumphantly  elected  governor,  and 
whose  inauguration  had  occurred  July  i. 

The  building  of  the  canal  was  not  merely  a  physical  and 
engineering  problem;  the  canal  commissioners  were  in- 
trusted with  the  duty  of  expending  upward  of  $5,000,000; 
the  influence  and  patronage  of  the  commissioners'  offices 
were  political  prizes,  and  the  canal  therefore  became  an  ele- 
ment in  politics.  In  the  course  of  a  few  years  the  canal 
board  was  reorganized  in  the  interest  of  the  Bucktails,  who 
ill-brooked  Clinton's  presence  in  it.  As  the  work  neared 
completion,  Clinton,  by  a  bold  and  unexpected  coup  of  the 
Albany  Regency,  was  deposed  from  his  place  (April  12, 
1824),  although  no  charge  of  mal-conduct  was  even  hinted. 
A  resolution  for  his  removal  was  introduced  in  the  senate 
in  the  closing  hours  of  the  last  day  of  the  session,  was  im- 
mediately passed,  all  but  three  senators  voting  in  the  affirm- 
ative, and  was  carried  in  the  assembly,  64  to  34.  The  re- 
moval, declares  Hammond,  "could  not  have  been  devised 
or  advised  by  Van  Buren,"  although  plainly  the  work  of  his 
political  lieutenants.     But,  however  originated,  it  operated 


Alexander,  "A  Political  History  of  New  York,"  I,  251. 


STATE   OF   NEW   YORK  149 

like  an  electrical  shock  to  the  whole  community.  Public 
sentiment  throughout  the  State  stigmatized  it  as  "a  cruel 
outrage"  to  one  of  the  greatest  benefactors  of  the  common- 
wealth. Clinton's  renomination  for  governor  was  widely 
demanded,  and  he  was  re-elected  in  the  fall  of  1824  over 
Samuel  Young,  by  a  majority  of  16,000.^ 

The  Erie  and  Champlain  canals,  extending  a  distance  of 
427  miles,  had  been  so  far  completed  in  October,  1823,  as 
to  allow  navigation  through  their  whole  extent.  Almost 
from  the  time  of  their  inception,  the  canals  became  an  im- 
portant factor  in  the  politics  of  the  State,  and  remained  such 
for  sixty  years.  The  people  are  indebted  to  their  artificial 
waterways  not  only  for  unbounded  material  prosperity,  but 
for  salutary  lessons  in  financial  and  economic  principles. 
About  1820  the  general  government  became  definitely  com- 
mitted to  the  doctrine  of  internal  improvements,  which  led 
to  the  evolution  of  parties  for  and  against  the  principle  in 
national  affairs.  In  the  State,  party  distinctions  were  not 
sharply  drawn  upon  this  subject,  for  while  it  was  a  cardinal 
theory  of  the  Whigs  that  it  was  the  duty  of  the  common- 
wealth in  the  interest  of  the  public  welfare  to  develop 
canals  and  promote  railway  enterprises  with  State  aid,  many 
influential  Democrats  were  marshalled  under  the  same  ban- 
ner. It  was  a  seductive  proposition,  and  the  ablest  politi- 
cians of  the  Democratic  faith  were  too  shrewd  not  to  ap- 
preciate its  strength  with  the  people.  Although  in  later 
years  the  Whigs  were  the  chief  sufferers  from  the  effect  of 
the  debt  caused  by  canal  expansion,  the  responsibility  for 
the  debt  belongs  to  both  parties,  who  were  simply  obeying 
popular  desire.  Several  distinct  phases  may  be  observed  in 
the  history  of  the  commonwealth :  the  period  of  canal  ex- 


*The  vote  for  Clinton  was  103,453;  for  Young,  87,093. 

"With  twenty-four  years  of  experience  and  observation,  I  have 
never  heard  the  removal  of  Mr.  Clinton  defended  or  excused  in  halls 
of  legislation,  in  the  press  or  by  an  individual."  "Autobiography  of 
Thurlow  Weed,"  I,  113.     Hammond  gives  similar  testimony. 


150  CONSTITUTIONAL   HISTORY 

tension  and  State  aid  to  railroads,  with  the  inevitable  con- 
'sequence  of  large  indebtedness;  the  era  of  discontent  with 
debt  accumulation  culminating  in  the  call  for  the  Conven- 
tion of  1846  and  the  insertion  in  the  organic  law  of  restric- 
tions upon  the  creation  of  debt  by  the  State ;  and  the  adop- 
tion thirty  years  later  of  like  constitutional  prohibitions 
upon  city,  county  and  town  indebtedness. 

Scarcely  had  the  Erie  Canal  become  an  accomplished 
fact  before  two  conflicting  systems  of  canal  policy  sprang 
into  full  vigor,  one  proposing  an  expensive  scheme  of  in- 
ternal improvements  including  the  construction  of  lateral 
canals  intersecting  the  chain  of  lakes  in  the  centre  of  the 
State,  at  the  expenditure  of  many  millions,  to  be  obtained, 
if  need  be,  by  loan  of  the  credit  of  the  State;  the  other 
deprecating  the  creation  of  this  vast  debt  and,  while  not 
opposed  to  canal  improvement,  insisting  that  the  work  could 
safely  be  undertaken  and  carried  on  only  out  of  surplus 
canal  revenues  as  they  should  accrue.  The  advocates  of  the 
debt-contracting  policy  were  sanguine  believers  that  the 
canal  tolls  would  keep  constantly  augmenting,  that  the  in- 
terest on  the  debt  would  surely  be  met  out  of  revenue,  and 
therefore  that  no  necessity  would  ever  arise  for  direct  taxa- 
tion. They  maintained  ascendency  in  the  State  government 
long  enough  to  secure  legislation  providing  for  the  Cayuga 
and  Seneca,  the  Crooked  Lake,  the  Chemung,  and  the  Che- 
nango canals,  and  others,  the  expense  of  construction  of 
which  was  onerous,  without  promise  of  corresponding  reve- 
nue.^    The  friends  of  the  debt-paying  policy  counselled 

■^In  the  period  between  the  second  constitution  and  the  conven- 
tion of  1846,  the  legislature  ordered  surveys  of  forty  canal  routes. 
Besides  these  it  chartered  thirty-one  companies  with  power  to  construct 
canals,  and  authorized  the  construction  of  two  others  by  private  or 
municipal  means.  It  actually  authorized  the  construction  of  fifteen 
other  canals  by  the  State  in  addition  to  the  great  canals,  which  were 
already  in  full  operation.     Lincoln,  "Constitutional  History,"  II,  p.  48. 

The  canal  commissioners  made  extravagant  predictions  as  to  future 
tolls,  placing  the  amount  at  $1,000,000  for  1836;  $2,000,000  by  1846; 
$4,000,000  by  1856;  and  $9,000,000  within  fifty  years.    The  tolls  in  1836 


STATE  OF  NEW  YORK  151 

moderation  in  expenditure,  and  opposed  the  lateral  canals. 
As  might  have  been  expected,  public  sentiment  in  counties 
remote  from  the  canals,  which  could  not  see  benefit  to  them- 
selves from  canal  construction,  did  not  support  the  canal 
policy.  To  overcome  their  objection,  the  State  was  drawn 
further  into  the  system  of  internal  improvement.  At  first 
the  project  was  to  build  a  State  highway  in  the  southern 
counties ;  this  was  abandoned,  and  in  its  place  the  State  lent 
its  aid  to  the  construction  of  the  New  York  and  Erie  Rail- 
road Company. 

After  ten  years  of  use,  it  was  found  that  the  Erie  Canal 
needed  enlargement  and  improvement;  and  in  1835,  ^^  the 
suggestion  of  Governor  Marcy,  a  law  was  passed  which  not 
only  authorized  but  directed  the  canal  commissioners  to 
enlarge  and  improve  the  Erie  Canal  and  construct  a  double 
set  of  lift  locks  therein  as  soon  as  the  canal  board  should  be 
of  the  opinion  that  the  public  interest  required  the  improve- 
ment. No  limitations  were  placed  upon  the  extent  of  the 
enlargement,  which  was  left  solely  to  the  discretion  of  the 
board.  The  act  clothed  the  commissioners  with  great  and 
perhaps  questionable  powers,  but  it  was  shorn  of  much  of 
its  danger  by  the  clause  which  forbade  the  contracting  for 
any  improvements  the  cost  of  which  could  not  be  defrayed 
out  of  the  surplus  revenues  of  the  canals.  In  March,  1838, 
the  canal  commissioners  reported  to  the  assembly  that,  by 
an  expenditure  of  about  $12,500,000,  the  canal  could  be 
made  seventy  feet  in  width  and  seven  feet  in  depth,  and 
supplied  with  adequate  gates  and  locks.  The  legislature 
thereupon  passed  and  Governor  Marcy  approved  a  bill  au- 


exceeded  the  amount  predicted  by  $440,000,  and  in  1846  by  almost  half 
a  million.  "With  the  comparatively  limited  expenses  of  the  state  gov- 
ernment at  that  time,  and  the  relatively  large  income  from  the  canals, 
the  people  had  begun  to  think  that  taxes  need  never  be  imposed  again, 
for  the  waterways  were  looked  upon  as  a  veritable  treasure  house  for 
supplying  funds."  Whitford,  "History  of  the  Canals."  See  also 
"Waterways  and  Canal  Construction  in  New  York  State,"  by  Hon. 
Henry  W.  Hill,  p.  152. 


152  CONSTITUTIONAL   HISTORY 

thorizing  the  commissioners  to  borrow  $4,000,000  on  the 
credit  of  the  State  for  the  enlargement  of  the  canal.^  The 
act  further  directed  the  commissioners  to  prepare  and  put 
under  contract,  with  as  httle  delay  as  possible,  such  portions 
of  the  work  as  were  mentioned  in  their  report  to  the  as- 
sembly, and  also  such  other  portions  as,  in  the  opinion  of 
the  canal  board,  would  best  secure  the  completion  of  the 
entire  enlargement,  with  double  locks  on  the  whole  line. 
The  interest  on  the  money  borrowed  was  to  be  paid  out  of 
canal  tolls  until  the  legislature  should  otherwise  determine. 
This  measure  received  considerable  Democratic  support. 
Thus  empowered,  the  canal  commissioners  made  contracts, 
pledging  the  State  treasury  to  an  expenditure  of  about 
$12,500,000,  nearly  all  of  which  sum  was  made  payable 
before  May  i,  1842.  Laws  were  also  passed  for  the  con- 
struction of  the  Black  River  and  Genesee  Valley  canals,  and 
the  public  credit  was  liberally  extended  to  various  railroad 
enterprises,  among  them  the  Erie  Railroad,  to  the  amount 
of  $3,000,000.  When  the  Convention  of  1846  met,  the 
loans  made  by  the  State  for  railroad  purposes  exceeded 
$5,000,000.  Opposition  to  this  policy  of  lending  the  State 
credit  to  railroad  associations  had  been  rapidly  crystalliz- 
ing, and  it  resulted  in  the  decision  of  the  convention  to  for- 
bid in  future  all  State  aid  to  private  enterprises. 

In  the  year  1839  the  canal  commissioners  were  asked  to 
revise  their  estimates  and  report  again  to  the  legislature.  It 
was  then  discovered  that  the  expenditure  necessary  to  com- 
plete the  improvements  on  the  scale  contemplated  in  their 
previous  report  had  risen  to  $23,000,000 — double  the  origi- 
nal estimates — and  that,  with  other  public  improvements 
undertaken  or  assisted  by  it,  the  State  had  involved  itself  in 
a  possible  indebtedness  of  $30,000,000.'''    These  facts  were 


"  Chapter  269,  Laws  of  1838. 

'"The  estimated  cost  of  the  enlargement  was  $23,402,863.02.  It 
was  not  completed  until  1862,  and  cost  $31,834,041.30,"  Hill,  "Water- 
ways and  Canal  Construction  in  New  York  State,"  151. 


STATE   OF   NEW   YORK  153 

mentioned  by  Governor  Seward  in  his  annual  messages  to 
the  legislature  in  1840,  1841,  and  1842,  but  faithful  to  the 
policy  of  internal  improvements  of  which  he  was  an  ardent 
and  somewhat  indiscriminate  advocate,  the  governor  argued 
in  favor  of  continuing  the  work  which  had  been  undertaken, 
keeping  the  expenditures  therefor  within  an  amount  the 
interest  upon  which  could  be  paid  from  the  surplus  revenues 
of  the  canals.^ 

These  events  followed  shortly  upon  the  commercial  panic 
of  1837.  The  credit  of  most  of  our  sister  States  was  then  at 
the  lowest  ebb.  Foreign  confidence  in  all  American  securi- 
ties had  been  seriously  impaired  by  the  policy  of  partial  re- 
pudiation which  some  of  them  had  adopted.  The  revelations 
of  the  canal  commissioners  had  a  disastrous  effect  upon 
the  credit  of  New  York  State.  Its  stocks  rapidly  depre- 
ciated, its  treasury  became  practically  empty,  money  could 
not  be  borrowed  for  public  uses  for  long  terms,  and  it  was 
with  great  difficulty  that  temporary  loans  could  be  procured 
to  meet  pressing  emergencies.  In  1842  the  Democrats  re- 
gained ascendency  in  the  State  legislature.^     Alarmed  at 


*As  Congress  had  voted  a  distribution  of  the  proceeds  of  sale 
of  pubHc  lands  among  the  States,  the  governor  recommended  that  all 
future  revenues  from  the  national  domain  should  be  pledged  as  a  sink- 
ing fund  to  the  extinguishment  of  the  principal  of  the  public  debts ; 
and  asserted  his  belief  that  if  seventeen  millions  of  dollars  were  still 
to  be  required  for  the  completion  of  the  canals,  the  whole  debt  might  in 
this  manner  be  discharged  by  1855.  "Viewed  in  the  light  of  subsequent 
history,  perhaps  Governor  Seward's  faith  was  justified,  and  it  may  be 
that  the  better  way  would  have  been  to  have  pushed  the  work  to  com- 
pletion at  the  expense  of  increasing  the  debt,  but  the  State's  best  finan- 
ciers of  the  time  could  see  no  way  out  of  the  difficulty,  but  to  pre- 
cipitately suspend  operations  and  order  a  tax  to  satisfy  the  creditors 
of  the  State."  Whitford,  "History  of  the  Canals  of  New  York."  See 
also  Seward's  Messages,  and  his  "Notes  on  New  York,"  published  in 
Seward's  Works,  vol.  II. 

"Azariah  C.  Flagg  became  comptroller,  Samuel  Young,  secre- 
tary of  state,  and  George  P.  Barker,  attorney-general.  These  officers 
were  not  elected  by  the  people,  but  were  chosen  by  the  legislature. 
Flagg,  in  his  first  report  to  the  legislature,  "boldly  laid  bare  the  finan- 
cial condition  of  the  State ;  he  adverted  to  the  rapid  decline  of  the  pub- 


154  CONSTITUTIONAL   HISTORY 

the  magnitude  of  the  debt  and  the  prospect  of  its  increase, 
the  legislature,  under  the  leadership  of  Michael  Hoffman, 
of  Herkimer,  passed  the  celebrated  finance  bill  of  1842,  to 
which  the  governor  gave  reluctant  approval. ^^  Hoffman 
had  been  a  member  of  Congress  and  also  a  canal  commis- 
sioner. With  his  experience  in  this  last  office  and  his  signal 
talents  as  a  lawyer  and  debater,  he  was  exceptionally  quali- 
fied to  explain  the  intricate  details  of  finance  and  to  lead 
the  movement  to  stop  expansion.  The  policy  of  this  act, 
called  the  Suspension  Act,  was  summary.  It  put  an  end  to 
all  work  on  the  canals  except  such  as  was  strictly  necessary 
to  preserve  and  render  useful  what  had  already  been  com- 
pleted. To  meet  the  State's  immediate  necessities,  it  im- 
posed a  direct  tax  upon  real  and  personal  property,  and 
pledged  one-half  of  the  tax  to  canal  purposes.  It  authorized 
the  issue  of  bonds,  and  pledged  surplus  canal  tolls  to  the 
redemption  of  the  canal  debt.  As  Governor  Wright  subse- 
quently declared,  the  effect  was  electric;  *'it  was  felt  not 
merely  throughout  the  State,  but  throughout  the  Union. 
*  *  *  From  this  time  the  credit  of  the  State  rose 
rapidly." 

While  the  "pay-as-you-go"  policy  of  the  act  of  1842  was 
maintained,  completion  of  the  contemplated  enlargement  of 
the  Erie  Canal  was  impossible.  It  was  not  long  before  the 
Democrats  themselves  began  to  divide  upon  the  question  of 
maintaining  the  law  in  all  its  strictness.  The  failure  of  the 
Democratic  National  Convention  at  Baltimore  to  renomi- 
nate Van  Buren  in  1844,  and  differences  among  party  lead- 
ers upon  national  issues,  split  the  party  into  two  factions : 
one  branch,  the  Radicals,  or  "Barnburners,"  were  for  rig- 


He  credit,  and  if  he  did  not  demonstrate  that  the  ship  of  State  was 
aground,  he  proved  that  she  was  on  the  point  of  foundering."  Ham- 
mond, "Life  of  Silas  Wright,"  274.  See  also  picture  of  financial  embar- 
rassment of  the  State,  268. 

"Whig  votes,  especially  in  the  senate,  seem  to  have  been  essen- 
tial to  the  passage  of  the  act.  For  the  motive  for  Whig  support  of  the 
measure,  see  "Life  of  Silas  Wright,"  by  Hammond,  284-5. 


STATE   OF   NEW   YORK  155 

idly  upholding  the  system  of  1842  and  applying  all  surplus 
tolls  to  the  extinction  of  the  public  debt;  the  Conservatives, 
or  ''Hunkers,"  siding  with  the  Whigs,  urged  .that  the  sur- 
plus should  be  devoted  to  the  completion  of  the  public  en- 
terprises suspended  by  the  act  of  1842.  But,  whatever  con- 
flicting opinions  were  held  as  to  the  desirability  of  finishing 
the  incomplete  public  works,  public  sentiment  had  awakened 
to  the  necessity  of  maintaining  the  pledge  of  canal  revenues 
to  the  payment  of  canal  debt,  and  of  limiting  the  debt-con- 
tracting power  of  the  legislature.  Resolutions  embodying 
these  ideas  were  introduced  in  successive  legislatures,  and 
barely  failed  of  the  vote  required  to  permit  their  submis- 
sion to  the  people. ^^  It  was  felt  that  the  credit  of  the  State 
would  not  be  safe  unless  the  act  of  1842  was  followed  by 
constitutional  checks  upon  legislative  action,  and  the  con- 
viction had  forced  itself  upon  the  public  mind  that  State  aid 
to  railroad  enterprises  must  terminate.  Memorials  from  a 
large  number  of  counties  urged  the  legislature  to  pass  a 
law  for  a  popular  vote  upon  the  holding  of  a  convention. 

That  voters  discriminated  between  national  and  State 
issues,  and  that  many  Whigs  had  cast  their  ballots  against 
debt  enlargement,  is  shown  by  the  official  returns  in  1844. 
Wright  polled  241,090  votes,  against  231,057  for  Fillmore. 
His  majority  over  Fillmore  was  10,033,  whereas  the  na- 
tional ticket  had  a  majority  of  only  about  5,000.  As  Alvan 
Stewart,  the  candidate  of  the  Liberty  party  for  governor, 
polled  almost  the  same  vote  as  Birney,  its  candidate  for  the 
presidency,  Wright's  vote  was  plainly  swelled  by  Whig  ac- 
cessions. As  he  wrote  President  Polk,  December  20,  1844, 
the  Democratic  party  had  not  been  united  upon  questions 
of  State  policy  for  several  years.     State  debts  and  public 

"Arphaxed  Loomis  of  Herkimer,  after  conference  with  Hoff- 
man and  Flagg,  introduced  resolutions  of  this  tenor  in  the  assembly  of 
1841  and  of  1842.  They  were  known  as  "the  people's  resolutions."  See 
inter  alia  Hammond,  "Life  of  Silas  Wright,"  286-288.  Lincoln,  "Con- 
stitutional History  of  New  York,"  H,  82,  83.  Loomis  was  subse- 
quently a  delegate  to  the  convention  of  1846. 


156  CONSTITUTIONAL   HISTORY 

expenditures  had  constituted  the  grounds  of  the  division. 
Wright's  first  message  elaborately  reviewed  the  events 
which  had  brought  the  State  to  the  necessity  of  issuing  a 
direct  tax.  His  intimacy  with  the  subject  was  profound. 
As  a  State  senator  in  1825,  and  later  as  State  comptroller, 
he  had  zealously  supported  the  debt-paying  policy.  Uncom- 
promising adherence  to  that  policy  had  been  the  keynote  of 
the  State  Democratic  Convention,  which  had  commended 
the  constitutional  amendments  adopted  at  the  previous  ses- 
sion of  the  legislature.  "By  them,"  said  the  platform,  "the 
pledges  and  guarantees  of  the  act  of  1842  are  confirmed, 
and  a  salutary  restriction  upon  the  power  of  the  legislature 
to  involve  the  State  in  excessive  debts  or  liabilities  is  im- 
posed." 

The  assembly  of  1845  organized  with  the  youthful 
Horatio  Seymour  as  speaker.  Seymour  ardently  believed 
in  the  earning  power  of  the  canals,  and  sanguinely  expected 
that  surplus  revenues  could  be  counted  upon  to  meet  the 
expense  of  improvement.  A  coalition,  tacit  or  actual,  was 
effected  with  the  Whigs.  The  canal  committee  appointed 
by  the  speaker  was  favorable  to  enlargement,  and  accord- 
ingly, within  a  few  days  after  the  commencement  of  the 
session,  the  legislature  approved  a  bill  appropriating  $197,- 
000  from  canal  revenues  to  various  improvements  in  the 
Crooked  Lake,  the  Genesee  Valley,  the  Black  River,  and 
the  Erie  canals.  The  bill  was  an  efifort  to  undermine  the 
statute  of  1842,  and  it  therefore  met  with  a  prompt  and 
emphatic  veto  from  Governor  Wright.  The  following  por- 
tions of  the  governor's  veto  message  are  quoted,  because 
they  help  to  explain  the  circumstances  which  led  to  the 
Convention  of  1846: 

"Another  reason  why  I  consider  the  present  an  unfortunate  time 
to  make  this  change  of  policy,  is  the  evidence  before  us  of  a  deter- 
minate disposition  in  the  public  mind  to  remodel  our  constitutional  sys- 
tem, in  reference  to  expenditures  of  this  description.  Ever  since  the 
prostration  of  the  credit  of  the  state  in  1841,  and  the  consequent  sus- 
pension of  the  public  works  and  establishment  of  the  financial  system 


STATE    OF   NEW   YORK  157 

adopted  by  the  legislature  of  1842,  the  attention  of  our  people  has  been 
drawn  to  the  necessity  of  some  further  constitutional  protection  against 
the  danger  of  enduring  debt  and  perpetual  taxation.  Extended  discus- 
sion for  two  years  resulted  in  action  by  the  last  legislature,  originating 
and  submitting  to  the  people,  previous  to  the  last  election,  specific 
amendments  to  the  constitution,  taking  two  most  important  positions  in 
reference  to  the  further  increase  of  our  public  debt  for  these  objects, 
namely : 

"i.  That  no  debt  should  be  hereafter  contracted  for  expenditures 
like  these,  until  the  law  authorizing  the  loans  should  have  been  sub- 
mitted to  the  people  and  expressly  approved  by  them,  by  their  direct 
votes  at  the  polls ;  and 

"2.  That  no  law  submitted  to  the  people  for  their  approbation, 
should  contain  authority  to  make  loans  for  but  a  single  work  or  object 
of  expenditure,  and  should  contain  irrepealable  provisions  for  a  sinking 
fund  to  meet  the  interest  and  pay  off  the  principal  of  the  debt  within 
a  specified  period. 

"This  legislature,  elected  with  reference  to  these  provisions  as 
amendments  proposed  to  the  constitution  of  the  state,  has  expressed  its 
sense,  the  one  house  by  the  constitutional  vote  of  two-thirds,  and  the 
other  by  a  majority  in  their  favor,  thus  reflecting  most  truly,  as  I  be- 
lieve, the  deliberate  sense  and  wish  of  a  majority  of  the  people  of  the 
state.  The  propositions,  however,  having  failed  to  receive  the  consti- 
tutional vote  of  two-thirds  of  the  assembly,  cannot  be  submitted  to  the 
people,  according  to  the  provisions  contained  in  the  constitution  for  its 
amendment,  and  have  therefore  failed.  This  failure,  together  with 
that  of  other  amendments  similarly  proposed  and  similarly  failing,  has 
secured  the  passage  of  a  law  for  the  call  of  a  convention  of  the  people 
of  the  state  to  amend  the  constitution." 


Believing  that  the  convention  would  be  held,  the  gov- 
ernor declared  that  the  resumption  of  public  works  and  the 
making  of  new  contracts  would  embarrass  its  proceedings. 
The  measure  not  receiving  the  requisite  vote  in  either  house 
to  pass  it  over  his  veto,  was  defeated.  Wright's  adamantine 
stand  for  the  public  faith  prevented  his  re-election.  An- 
other cause  was  his  treatment  of  the  anti-renters.  Paradox- 
ical as  it  may  seem,  the  people,  in  the  canvass  in  which  they 
defeated  Wright,  approved  the  calling  of  a  constitutional 
convention.  Wright  had  been  elected  in  1844  by  a  ma- 
jority of  10,033  ^^^^  Fillmore,  yet  was  beaten  in  1846  by 
an  adverse  majority  of  11,572  in  favor  of  John  Young. 
The  anomaly  is  that  in  the  election  of  1846  his  views  were 


158  CONSTITUTIONAL   HISTORY 

nevertheless  sustained,  and  his  and  Michael  Hoffman's  pol- 
icy of  having  the  substance  of  the  law  of  1842  incorporated 
in  the  organic  law  of  the  State  was  approved  by  about 
130,000  majority.  Wright's  veto  may  have  been  impolitic, 
but  its  explanation  is  his  firm  adherence  to  principle.  His 
friends  complained  that  the  real  object  of  the  bill  was  the 
accomplishment  of  his  overthrow ;  in  many  quarters  his  de- 
feat was  ascribed  to  "the  old  Hunkers." 

Public  sentiment  urged  the  incorporation  in  the  constitu- 
tion of  the  essence  of  the  act  of  1842;  the  legislature  of 
1844  approved  the  proposed  amendments,  yet  the  legislature 
of  1845  withheld  requisite  consent.  The  senate  was  favor- 
able, but  in  the  assembly  the  resolutions  for  amendments 
were  defeated.  This  resulted  not  from  opposition  to  the 
principle  of  the  amendments  but  from  the  determination  of 
the  majority  to  force  the  holding  of  a  constitutional  con- 
vention. The  Hunkers  opposed  a  convention  unless  all 
amendments  were  separately  submitted  to  the  people.  Many 
radicals,  including  Hoffman,  favored  a  convention  as  the 
only  sure  means  of  obtaining  constitutional  guarantees 
against  additional  indebtedness.  The  Whigs  generally  de- 
sired a  convention,  and  this  was  the  attitude  of  the  native 
Americans  and  the  Anti-Renters.  In  the  assembly  the 
Whigs,  under  John  Young's  leadership,  succeeded  in  de- 
feating the  amendment  resolutions,  despite  Seymour's  bril- 
liant opposition,  and  this  forced  the  call  of  a  convention.^^ 

The  constitution  of  1821  provided  only  one  method  of 
amendment.  Amendment  might  be  had  after  approval  by 
two  successive  legislatures,  followed  by  popular  ratifica- 
tion. There  was  no  express  authority  for  the  summoning 
of  a  convention.     On  May  13,  1845,  ^^  ^ct  was  passed  by 


"The  Native  American  party  came  into  existence  after  the  great 
emigration  from  Europe  began.  The  coalescence  of  the  Democratic 
party  in  the  city  of  New  York  with  foreign  born  voters  awakened 
some  of  the  native  born  element  to  temporary  revolt.  The  party  elected 
James  Harper  mayor  in  1844. 


STATE   OF   NEW   YORK  159 

the  legislature  recommending  a  convention  and  providing 
for  a  referendum  at  the  annual  election  in  November  of 
that  year.^^  If  the  canvass  of  votes  showed  that  a  ma- 
jority were  in  favor  of  a  convention,  the  act  recommended 
the  citizens  of  the  State,  on  the  last  Tuesday  of  April, 
1846,  to  elect  delegates  to  meet  in  convention  for  the  pur- 
pose of  considering  the  constitution  and  of  making  such 
alterations  therein  as  the  rights  of  the  people  should  de- 
mand, and  as.  they  might  deem  proper.  The  number  of 
delegates  was  to  be  the  same  as  the  number  of  members  of 
assembly,  and  all  persons  entitled  to  vote  for  assemblymen 
were  to  be  eligible  to  vote  for  delegates.  The  delegates 
were  to  convene  at  the  capitol  in  the  city  of  Albany  on  the 
first  Monday  of  June,  1846.  All  amendments  to  the  con- 
stitution submitted  by  the  convention  to  the  people  for  their 
adoption  or  rejection  were  to  be  voted  upon  at  the  annual 
election  to  be  held  in  November,  1846,  and  every  person 
entitled  to  vote  at  that  election  might  vote  upon  the  amend- 
ments. The  call  of  a  convention  was  approved  by  popular 
vote  on  November  4,  1845,  t^^  vote  for  a  convention  being 
213,257,  against  it,  33,860. 

At  the  time  of  the  passage  of  the  act  of  1845  member- 
ship in  the  assembly  was  regulated  by  the  apportionment 
which  had  been  made  in  the  spring  of  1836.  In  the  spring 
of  1846  a  new  apportionment  was,  pursuant  to  the  constitu- 
tion, made  by  the  legislature.  On  April  22,  1846,  the  legis- 
lature passed  a  law  declaring  that  the  number  of  delegates 
to  be  chosen  in  and  by  the  respective  cities  and  counties  of 
the  State  should  be  the  same  as  the  number  of  members  of 
the  assembly  to  be  chosen  in  and  by  said  cities  and  counties 
respectively,  in  pursuance  of  the  act  passed  on  May  30  of 


"The  act  recommending  a  convention  was  by  some  Democrats 
regarded  as  unconstitutional ;  Seward  and  other  leading  Whigs  believed 
it  valid.  The  vote  in  the  senate  was  i8  for,  to  14  against ;  in  the  assem- 
bly, 83  in  favor,  to  33  in  opposition. 


i6o  CONSTITUTIONAL   HISTORY 

that  year  for  the  apportionment  of  members  of  the  as- 
sembly.-^* 

Inasmuch  as  the  questions  which  had  led  to  the  vote  for 
a  convention  aroused  party  and  factional  differences,  and 
as  an  election  of  delegates  under  the  apportionment  of  1846 
would  give  to  certain  interests  a  preponderance  which  they 
might  not  have  had  under  the  apportionment  of  1836,  the 
assembly  sought  the  opinion  of  the  justices  of  the  supreme 
court  upon  the  constitutionality  of  the  act  of  1846.  The 
justices  unanimously  declared  that  the  legislature  was  with- 
out power  to  compel  delegates  to  be  chosen  under  the  later 
apportionment.^^  The  number  of  members  from  the  respec- 
tive counties  under  the  apportionment  in  force  when  the  act 
of  1845  was  passed  was,  said  the  court,  to  be  determined  by 
the  apportionment  of  1836,  and  although  a  new  apportion- 
ment of  members  of  the  assembly  had  been  made,  it  could 
not  take  effect  for  any  purpose  until  the  fall  of  that  year. 
The  people  ''have  not  only  decided  in  favor  of  a  convention, 
but  they  have  determined  that  it  shall  be  held  in  accordance 
with  the  provisions  of  the  act  of  1845.  '^^  other  proposi- 
tion was  before  them  and,  of  course,  their  votes  could  have 
had  reference  to  nothing  else."  The  opinion  of  the  learned 
judges  was,  nevertheless,  disregarded  by  both  the  legislature 
and  the  people,  for  the  election  took  place  under  the  later 
apportionment. 

The  popular  vote  in  favor  of  holding  the  convention 
preponderated,  yet  the  total  vote  upon  the  subject  was  not 


""In  other  words,  the  act  calling  the  convention  was  proposed 
to  be  modified  by  the  body  which  had  originally  passed  it,  after  it  had 
been  voted  upon  by  the  people."  Jameson,  "The  Constitutional  Con- 
vention," Sec.  390. 

"The  judges  were  Bronson,  Beardsley,  and  Jewett.  Judge 
Jameson  vigorously  dissents  from  that  portion  of  their  conclusions  in 
which  they  seemed  to  hold  that  where  express  authority  to  call  a  con- 
vention has  not  been  given  by  the  constitution,  a  legislature  has  no 
power  to  do  it. 


STATE   OF    NEW    YORK  i6i 

much  more  than  half  the  vote  for  the  governor.  Public 
indifference  to  constitutional  questions  appeared  also  in  the 
vote  upon  the  convention's  work  and  has,  as  a  rule,  been  a 
notable  characteristic  of  later  votes  upon  constitutional 
matters. 


i62  CONSTITUTIONAL   HISTORY 


CHAPTER   IX 

CONVENTION  ASSEMBLES  AT  ALBANY JOHN  TRACY^   PRESI- 
DENT  PERSONNEL    OF    CONVENTION CHIEF    WORK    OF 

CONVENTION PROVISIONS  AS  TO  CANALS,  PUBLIC  REVE- 
NUE, AND  PUBLIC  DEBTS EVILS  OF  SPECIAL  LEGISLATION 

PROVISIONS     AS     TO     CORPORATIONS THE     LOCO-FOCO 

PARTY    AND    ITS    DECLARATION    OF    PRINCIPLES EFFECT 

UPON    CONVENTION POLICY   OF    CONVENTION    EXTREME 

DECENTRALIZATION INCREASE  IN  NUMBER  OF  SENATO- 
RIAL DISTRICTS ABOLITION  OF  COUNTY  REPRESENTA- 
TION   IN    THE   ASSEMBLY PROVISION    FOR    ARBITRATION 

TRIBUNALS CREATION   OF   NEW    SUPREME   COURT   WITH 

LAW    AND    EQUITY    POWERS ADOPTION    OF    ADDITIONAL 

MODE    OF    AMENDING    THE    CONSTITUTION ADDRESS    OF 

THE    CONVENTION    TO    THE    PEOPLE ESTIMATE    OF    ITS 

WORK THE  CANAL  BILL  OF  185I,  DECLARED  UNCONSTI- 
TUTIONAL  AMENDMENT  OF  CANAL  PROVISIONS  OF  CON- 
STITUTION IN  1854 ORIGIN  AND  PROGRESS  OF  ANTI- 
RENT  CONTROVERSY  AND  LIMITATIONS  UPON  AGRICUL- 
TURAL LEASES  IN  NEW  CONSTITUTION. 

The  convention  assembled  at  the  capitol  on  June  i,  1846, 
and  John  Tracy,  of  Chenango  county,  was  chosen  president. 
The  representation  was  of  a  high  order.  There  was  a  large 
proportion  of  lawyers  in  the  assemblage,  whose  work  called 
for  supreme  legal  talent.  Seward  was  not  a  delegate,  his 
county  being  unfavorable  to  his  selection.  Charles  H.  Rug- 
gles  (afterward  chief  judge  of  the  court  of  appeals), 
Michael  Hoffman,  Charles  O' Conor,  Samuel  J.  Tilden, 
Churchill  C.  Cambreleng,  Charles  P.  Daly,  Ira  Harris,  later 


STATE    OF    NEW    YORK  163 

United  States  senator,  Henry  C.  Murphy,  Charles  P.  Kirk- 
land,  Samuel  Nelson,  John  K.  Porter,  Lorenzo  B.  Shepard, 
Alvah  Worden,  Ambrose  L.  Jordan,  Lemuel  Stetson,  and 
ex-Governor  William  C.  Bouck  were  among  its  leading 
members.  Both  James  Tallmadge  and  Judge  Nelson  had 
been  delegates  to  the  Convention  of  1821. 

The  Convention  of  1846  was  the  first  constitutional 
convention  ever  assembled  in  this  State  which  fully  de- 
served to  be  styled  a  people's  convention.  The  delegates 
were  elected  substantially  upon  the  basis  of  manhood  suf- 
frage. The  truly  popular  origin  of  the  convention  may  ex- 
plain its  apotheosis  of  the  notion  that  all  power  emanates 
from  the  people.  The  cardinal  distinction  between  this 
convention  and  its  predecessors  is  that  its  work  seemed 
chiefly  to  be  a  revesting  of  delegated  power  in  the  people  of 
the  State.  It  was  remarkable,  no  less  in  regard  to  the  power 
which  it  bestowed  than  in  regard  to  that  which  it  resumed. 
The  chief  innovation  of  the  constitution  of  1846  was  in 
limiting  the  sphere  of  legislative  action.  It  deprived  the 
legislature  of  power  to  incur  debts  or  undertake  costly 
schemes  of  public  improvement  without  direct  popular  con- 
sent, and  forbade  its  loaning  the  credit  of  the  State  to  pri- 
vate capital,  thus  putting  into  the  organic  law  the  principles 
for  which  Michael  Hoffman  had  earnestly  and  successfully 
contended  in  1842.  The  restraints  which  the  constitution 
of  1846  placed  upon  the  legislature  may  be  ranked  as  the 
most  valuable  service  performed  by  the  convention. 

The  convention  reported  a  new  constitution  which  em- 
bodied the  greater  part  of  the  old.  The  radical  changes  re- 
lated to :  ( I )  canals,  internal  improvements,  public  revenue, 
and  public  debts;  (2)  incorporations;  (3)  election  of  State, 
judicial,  and  local  officers;  (4)  enlargement  of  the  number 
of  senate  districts,  and  substitution  of  district  for  county 
representation  in  the  assembly;  (5)  reorganization  of  the 
judiciary,  and  reformation  in  the  system  of  legal  procedure; 
(6)  methods  of  amending  the  constitution, 


i64  CONSTITUTIONAL    HISTORY 

The  subject  of  public  improvements  and  public  debts, 
which  was  the  chief  cause  for  the  summoning  of  the  con- 
vention, is  treated  in  Article  VII  of  the  constitution  of 
1846.  As  originally  ratified,  the  article  first  provided  for 
keeping  the  canals  of  the  State  in  repair  out  of  its  revenues. 
It  then  set  apart  $1,300,000  of  the  surplus  revenues  every 
fiscal  year  until  June  i,  1855,  to  the  Hquidation  of  the  prin- 
cipal and  interest  of  the  canal  debt,  and  thereafter  devoted 
$1,700,000  of  such  revenues  annually  to  the  same  purposes.^ 
It  set  apart  annually  $350,000,  and,  after  the  extinguish- 
ment of  the  canal  debt,  $1,500,000  every  year  to  the  re- 
demption of  the  principal  and  interest  of  that  part  of  the 
State  debt  called  the  general  fund  debt  which  it  was  claimed 
in  the  convention  had  been  incurred  for  the  canals  and 
which  therefore  the  canal  revenues  ought  equitably  to  de- 
fray. These  provisions  in  the  main  had  been  embodied  in 
the  report  of  the  Committee  on  Canals  and  Public  Debts, 
headed  by  Hoffman  and  Tilden.  The  convention  also  pro- 
posed to  render  the  canals  inalienable  and  require  the  peo- 
ple to  operate  them,  for  the  constitution  which  it  framed 
declared  that  these  should  never  be  sold,  leased,  or  other- 
wise disposed  of.  Thus  was  extended  to  the  canals  the 
policy  concerning  the  salt  springs  adopted  by  the  Conven- 
tion of  1 82 1.  Prohibition  of  sale  of  the  salt  springs  was 
withdrawn  in  1894. 

As  in  the  legislatures  of  1842  and  1844,  so  in  the  con- 
vention, were  to  be  found  advocates  and  opponents  of  the 
enlargement  and  completion  of  the  canals.^  With  the  ma- 
jority the  extinguishment  of  debt  in  the  shortest  period,  at 
least  within  the  period  contemplated  by  the  act  of  1842,  was 
the  paramount  idea.    Others  were  animated  by  the  desire  to 


^This  assumed  the  revenues  would  continue  adequate  for  these 
purposes,  and  they  did. 

"A  majority  of  the  delegates  to  the  convention,  according  to 
statements  made  in  the  course  of  debates,  were  instructed  to  engraft 
the  main  features  of  the  law  of  1842  upon  the  constitution. 


STATE   OF   NEW   YORK  165 

see  the  canals  completed  and  enlarged  so  as  to  produce  the 
fullest  benefit  to  the  State,  and  to  prevent  diversion  of 
western  trade  to  other  Atlantic  ports, — even  at  the  cost  of 
delaying  the  liquidation  of  the  debt — and  their  effort  was  to 
secure  provision  out  of  the  canal  revenues  for  the  requisite 
completion  and  enlargement.  The  constitution  made  pro- 
vision for  necessary  work,  and  so  fortunate  was  the  State 
that  it  was  able  to  pay  the  debts  then  charged  upon  the  canal 
revenues  in  as  short  a  time  as  was  anticipated  by  those  most 
desirous  of  seeing  them  promptly  extinguished. 

But  the  most  important  provisions  of  the  article  were 
contained  in  sections  8  to  14  inclusive.  With  few  sub- 
stantive changes  these  sections  have  remained  intact  to  the 
present  day.  Section  8  forbade  the  payment  of  money  or 
funds  of  the  State  except  in  pursuance  of  appropriations 
by  law.  Section  9  declared  that  the  credit  of  the  State 
should  not  in  any  manner  be  given  or  loaned  to  or  in  aid  of 
an  individual,  association,  or  corporation,  thus  preventing 
subsidies  to  railroads  or  to  other  enterprises  originated  by 
private  capital.  Section  10  empowered  the  legislature  to 
contract  debts  in  order  to  meet  casual  deficits  or  failures  in 
revenue  or  expenses  not  provided  for,  but  provided  that  no 
such  debts,  direct  and  contingent,  singly  or  in  the  aggre- 
gate, should  at  any  time  exceed  one  million  dollars.  Moneys 
raised  to  pay  such  debts  were  to  be  rigidly  applied  to  the 
specific  purposes  for  which  they  had  been  obtained.  These 
limitations  were  not  to  apply,  however,  in  extraordinary 
emergencies.  The  State  was  left  free  to  contract  debts  in 
any  amount  in  order  to  repel  invasion,  suppress  insurrection, 
or  defend  itself  in  war;  but  moneys  raised  for  any  of 
these  objects  were  sacredly  to  be  devoted  to  their  accom- 
plishment. Section  12  ordained  that  with  the  exception 
of  the  debts  specified  in  the  tenth  and  eleventh  sections 
the  State  should  contract  no  debt  except  in  pursuance  of  a 
law  specifying  the  sole  work  and  object  for  which  the 
debt    was    to    be    incurred:    that    the    law    should    also 


i66  CONSTITUTIONAL   HISTORY 

provide  for  the  collection  of  a  direct  annual  tax,  suffi- 
cient to  pay  the  interest  on  the  debt  as  it  fell  due,  and  the 
principal  within  a  period  of  eighteen  years  from  the  time 
when  the  debt  had  been  contracted ;  and  that  before  it  could 
take  effect  every  such  law  should  be  submitted  to  the  people 
and  be  sustained  by  a  majority  of  all  the  votes  cast  for  and 
against  it.  Even  after  popular  sanction  was  thus  had,  the 
legislature  might  repeal  the  law  or  stop  the  work.  To  pre- 
vent the  enactment  of  such  laws  in  moments  of  public  ex- 
citement, no  such  measure  was  to  be  voted  upon  by  the 
people  within  three  months  after  its  passage  through  the 
legislature.  Nor  was  a  vote  to  be  taken  upon  any  such 
law  when  any  other  enactment  or  bill,  or  any  amendment 
to  the  constitution,  was  to  be  voted  upon  by  the  people. 
Section  13  provided  that  every  law  imposing,  continuing, 
or  reviving  a  tax  should  distinctly  state  the  tax  and  the 
object  to  which  it  was  to  be  applied,  without  reference  to 
any  other  law,  in  order  to  fix  the  tax  or  object.  Section  14 
required  that  the  vote  in  either  house  upon  all  such  measures 
should  be  taken  by  ayes  and  noes,  to  be  entered  on  the 
journals,  and  that  whenever  such  measures  were  voted  upon, 
a  quorum  should  consist  of  three-fifths  of  all  the  members 
elected  to  either  house. 

Article  VIII  contained  the  second  class  of  restraints  on 
the  State  legislature,  namely,  those  which  relate  to  the  cre- 
ation of  corporations.  The  State  had  long  suffered  from 
the  evils  of  special  legislation.  The  constitution  of  1822 
had  aimed  to  supply  a  remedy  by  providing  that  the  assent 
of  two-thirds  of  the  members  elected  to  each  branch  of  the 
legislature  should  be  requisite  to  every  bill  appropriating 
public  money  or  property,  for  local  or  private  purposes,  or 
creating,  continuing,  altering,  or  renewing  any  body  politic 
or  corporation.  Henry  Wheaton,  one  of  the  delegates  to 
the  Convention  of  1821,  offered  a  resolution  in  that  body 
making  it  imperative  upon  the  legislature  to  enact  general 
laws  regarding  private  corporations,  but  his  wise  resolution 


STATE   OF   NEW   YORK  167 

was  not  adopted.  The  provision  approved  by  that  conven- 
tion failed  to  remedy  the  evil ;  it  merely  led  to  greater  scan- 
dals in  the  legislature,  since  more  money  was  required  to 
secure  the  necessary  two-thirds  vote.  The  vice  lay  in  the 
permission  of  special  legislation.  Additional  bank  charters 
were  sought  after  it  became  known  that  Congress  would 
not  for  a  second  time  renew  the  charter  of  the  Bank  of  the 
United  States.  The  State  law  restraining  the  use  of  capital 
for  banking  purposes  was  repealed  in  1838  and  superseded 
by  a  general  banking  law,  but  the  power  to  grant  special 
bank  charters  still  existed,  and  special  charters  were  sought 
for  insurance  companies  and  railroad  enterprises.^ 

The  sentiment  against  special  privileges  took  concrete 
shape  in  New  York  City  in  1835  in  the  formation  of  a  party 
known  as  the  Equal  Rights  party,  to  which  was  soon  after- 
ward given  the  sobriquet  of  the  Loco-Foco  party.  In  a  con- 
vention held  in  that  city,  this  party  promulgated  a  ''declara- 
tion of  rights"  asserting  its  hostility  to  the  grant  of  special 
privileges,  which  brought  upon  it  almost  universal  censure 
from  the  press,  The  Evening  Post  alone,  among  the  city 
papers,  approving  most  of  its  principles.  The  platform 
adopted  at  a  State  convention  held  in  1837  advocated  in 
addition  the  election  of  all  judges  by  the  people,  the  aboli- 
tion of  capital  punishment,  and  the  punishment  of  all  frauds 
as  felonies.     The  career  of  the  party  was  ephemeral,  but 


'Many  applications  for  bank  charters  were  made  to  the  legisla- 
ture of  1824.  From  the  City  of  New  York,  two  were  successful,  one 
for  the  Fulton  Bank,  the  other  for  the  Chemical  Bank.  One  came  from 
Rochester,  and  this  Thurlow  Weed  engineered  through  the  legislature. 
While  declaring  that  nothing  was  paid  for  this,  he  states  in  his  "Auto- 
biography" that  the  charter  of  the  Fulton  Bank  "owed  its  success  to  a 
clause  contributing  a  large  amount,  $200,000,  I  believe,  for  the  benefit 
of  the  then  vice-president,  Daniel  D.  Tompkins.  The  other,  the  Chem- 
ical Bank,  it  was  alleged,  purchased  its  charter.  Such  at  least  were 
the  charges  and  a  legislative  investigation  showed  that  a  large  amount 
of  money  had  been  expended,  and  with  damaging  effect  upon  several 
members  of  the  legislature."  "Autobiography  of  Thurlow  Weed,"  I, 
106. 


i68  CONSTITUTIONAL    HISTORY 

its  hostility  to  special  legislation  and  special  privileges  had 
its  influence  upon  the  new  constitution.* 

Article  VIII  of  that  constitution,  which  was  the  out- 
come of  the  work  of  three  separate  committees — the  Com- 
mittee on  Municipal  Corporations,  the  Committee  on  Bank- 
ing Corporations,  and  the  Committee  on  Other  Corporations 
— was  a  feeble  protest  at  best,  and  in  its  adoption  the  con- 
vention did  not  take  an  adequate  forward  step.  While  in 
one  clause  it  forbade  special  charters  for  private  corpora- 
tions, in  another  it  practically  nullified  this  by  allowing  such 
incorporation  where  in  the  judgment  of  the  legislature  the 
objects  of  the  corporation  could  not  be  attained  under  gen- 
eral laws.  This  "judgment,"  as  has  well  been  said,  is  not 
judicial,  but  legislative,  and  therefore  not  reviewable  by 
the  courts.  Special  charters  for  banking  purposes  were 
prohibited ;  the  legislature  was  forbidden  to  sanction  in  any 
manner  the  suspension  of  specie  payments  by  any  person  or 
association  issuing  bank  notes,  and  required  to  provide  for 
the  registry  of  all  bills  issued  to  circulate  as  money  and  for 
their  redemption  in  specie.  Stockholders  in  banks  of  cir- 
culation were  made  individually  responsible  for  corporate 
debts  to  the  extent  of  their  shares,  and  bill  holders  were, 
in  the  event  of  the  insolvency  of  a  bank,  given  a  preference 
over  all  its  other  creditors.  As  the  Dartmouth  College  de- 
cision had  placed  corporate  charters  theretofore  granted 
above  revocation,  the  constitution  wisely  reserved  to  the 
legislature  the  power  of  altering  or  repealing  all  such  char- 
ters as  should  thereafter  be  granted. 

Next  in  importance  to  its  restrictions  upon  the  law- 
making power  was  the  change  made  by  the  constitution  in 
the  system  of  appointment.  The  first  constitution  vested 
the  power  of  appointment,  in  all  its  amplitude,  in  the  council 
of  appointment;  the  second  constitution  clothed  the  gov- 


*  Hammond,  "Political  History  of  New  York,"  II,  489-503,  Byrdsell, 
"History  of  the  Loco-Foco  Party."  "Martin  Van  Buren,"  by  Edward 
M.  Shepard,  293. 


STATE   OF   NEW   YORK  169 

ernor  and  the  senate  with  this  power  except  in  the  case  of 
State  officers  elected  by  the  two  houses  of  the  legislature. 
The  policy  of  1846  was  extreme  decentralization.  It  gave 
the  people  the  election  of  officers  theretofore  appointed  by 
the  governor,  and  of  State  officials  previously  chosen  by  the 
senate  and  assembly.  It  preserved  and  extended  local  self- 
government.  The  power  of  removal,  which  the  constitu- 
tion of  1822  had  divided  between  the  governor  and  the 
legislature,  was  retained  in  the  same  control,  but  greatly  in- 
creased in  scope.  Thus  while  the  tendency  in  electing  was 
decentralizing,  the  power  of  removal  was  centralized.  The 
people  were  to  elect,  but  either  the  governor  and  the  senate 
or  the  legislature  might  remove  for  misconduct  in  office. 

The  convention  changed  the  tenure  of  the  senatorial 
office  and  the  mode  of  electing  senators  and  assemblymen. 
The  State  was  divided  into  thirty-two  senatorial  districts 
instead  of  eight,  and  each  district  was  to  choose  a  senator. 
The  term  of  senators  was  reduced  from  four  to  two  years. 
County  representation  in  the  assembly  was  abolished,  and 
district  representation  substituted,  the  new  constitution  di- 
recting that  members  of  assembly  should  be  apportioned 
among  the  several  counties  of  the  State  as  nearly  as  might 
be  according  to  the  number  of  their  respective  inhabitants, 
excluding  aliens  and  persons  of  color  not  taxed,  and  be 
chosen  in  single  districts.  Every  county  except  Hamilton 
was  insured  at  least  one  member.  Hamilton  was  to  elect 
with  Fulton  until  its  population  should  entitle  it  to  a  mem- 
ber. Provision  was  made  for  a  new  census  and  a  new  re- 
apportionment every  ten  years.  The  restrictions  upon 
colored  citizenship,  for  the  removal  of  which  Peter  A.  Jay 
had  gallantly  pleaded  in  182 1,  were  unfortunately  contin- 
ued. 

The  constitution  authorized  the  establishment  of  tri- 
bunals of  conciliation  to  hear  cases  voluntarily  submitted 
by  parties  and  to  render  judgment  thereon,  the  hope,  which 


170  CONSTITUTIONAL   HISTORY 

has  never  been  realized,  being  that  this  would  tend  to  re- 
duce the  volume  of  litigation.  Also  the  legislature  first 
thereafter  to  be  convened  was  required  to  revise  the  system 
of  court  practice,  which  resulted  in  the  simplified  procedure 
subsequently  adopted  in  this  State,  and  substantially  copied 
in  many  other  States,  and  in  England.  Measures  were  pro- 
vided to  secure  the  codification  of  the  substantive  law  of 
the  State,  but,  although  the  commissioners  charged  by  the 
legislature  with  this  duty  reported  a  code  of  the  substantive 
law  many  years  ago,  so  great  was  the  hostility  it  encoun- 
tered from  the  bar  that  it  was  never  enacted.^  Partial  re- 
vision upon  code  lines  has^  however,  been  made,  several 
branches  of  the  law  have  been  reduced  to  a  codified  form, 
and  codes  of  procedure  have  been  established. 

The  new  constitution  retained  the  court  of  impeachment, 
but  abolished  the  court  for  the  correction  of  errors.  Chan- 
cery courts  as  separate  organizations  also  ceased  to  exist, 
and  the  old,  expensive  and  tedious  methods  of  taking  testi- 
mony in  equity  cases  were  abolished.  A  new  supreme  court 
was  created  with  general  jurisdiction  in  law  and  in  equity. 
The  State  was  divided  into  eight  judicial  districts,  of  which 
New  York  City,  as  then  existing,  was  to  be  one,  the  others 
to  be  bounded  by  county  lines,  and  to  be  as  compact  and 
nearly  equal  in  population  as  possible.  Four  supreme  court 
justices  were  allotted  to  each  district,  except  the  district  co- 
terminous with  the  city  and  county  of  New  York.  This  dis- 
trict was  to  elect  as  many  such  justices  as  the  legislature 
might  prescribe.  The  term  of  office  of  supreme  court  jus- 
tices was  fixed  at  eight  years.  The  constitution  established 
a  court  of  appeals  of  eight  judges,  four  of  whom  were 
to  be  elected  by  the  electors  of  the  State  for  eight  years, 
the  remaining  four  to  be  selected  from  time  to  time  by 
methods  to  be  provided  by  law  from  the  justices  of  the 

"The  constitution  of  1894  finally  eliminated  these  provisions  (Sec. 
17,  Art.  I). 


STATE   OF   N^W   YORK  171 

supreme  court  having  the  shortest  time  to  serve.^  The 
judges  of  the  court  of  appeals  were  to  be  so  classified  that 
one  should  go  out  of  office  every  year.  In  the  twenty- three 
years  during  which  the  constitution  was  in  force  these  ex- 
traordinary provisions  brought  into  the  court  of  appeals 
more  than  one  hundred  judges,  creating  a  most  unstable 
and  fluctuating  tribunal.'^ 

Although  the  constitution  of  1822  made  provision  for 
its  amendment  by  legislative  resolutions  approved  by  the 
people,  it  did  not  authorize  the  calling  of  a  constitutional 
convention.  Despite  its  silence  upon  this  point,  the  act  of 
1845  provided  for  the  submission  to  popular  vote  of  the 
question  whether  a  convention  should  be  held,  and  if 
the  vote  were  favorable,  for  the  election  of  delegates  and 
the  holding  of  a  convention.  Two  views  were  entertained 
as  to  this  enactment :  one,  that  although  extra-constitutional, 
it  was  justifiable  as  a  peaceful  revolution.  The  other  and 
the  sounder  opinion,  endorsed  by  such  constitutional  lawyers 
as  Rufus  Choate  and  Marcus  Morton  in  the  Massachusetts 
Convention  of  1853,  upheld  its  fundamental  constitution- 
ality, upon  the  theory  that  the  right  of  amendment  by  con- 
vention is  a  popular  right  underlying  the  constitution  of 
every  free  people,  which  has  not  been  renounced,  although 
the  constitution  may  furnish  other  methods  of  amendment. 
This  interesting  discussion  was  set  at  rest  in  this  State  by 
article  XIII  of  the  constitution  of  1846,  which  provided 
for  ascertaining  the  popular  desire  for  a  convention,  at 
least  once  in  every  twenty  years,  and  for  the  holding  of  a 
convention  at  shorter  intervals  should  the  people  so  will. 
Thus  the  constitution  of  1846  furnished  two  methods  of 
amendment, — the  one  by  legislative  initiative  sustained  by 

"This  mode  of  selection  doubtless  was  based  upon  the  assump- 
tion that  the  justices  of  the  supreme  court  having  the  longest  judicial 
experience  were,  as  a  rule,  better  qualified  to  sit  in  the  court  of  last 
resort  than  their  colleagues  who  had  enjoyed  shorter  service  upon 
the  bench.     (See  also  Sees.  4,  5,  6,  Chap.  280,  Laws  of  1847.) 

^For  a  fuller  account  of  the  judiciary,  see  Chapter  X. 


172  CONSTITUTIONAL    HISTORY 

popular  vote,  the  other  by  a  convention  called  after  a  vote 
by  the  people  to  hold  it.  This  dual  method  is  now  found 
in  the  constitutions  of  many  States,  and  the  history  of  this 
State  demonstrates  its  usefulness. 

There  is  little  of  permanent  value  in  the  opinions  of  the 
members  of  the  Convention  of  1846  regarding  its  work. 
It  is  within  the  power  of  few  to  view  their  own  achieve- 
ments impersonally.  Taggart,  somewhat  in  the  spirit  in 
which  Jay  spoke  of  the  first  constitution,  and  Washington 
of  the  Federal  constitution,  said  that  there  was  much  in  the 
work  of  the  convention  that  he  disapproved.  Believing 
that  as  a  whole  it  would  give  the  State  the  best  constitution 
it  had  ever  had,  he  moved  that  the  proposed  constitution 
be  read,  adopted,  and  signed.  In  seconding  the  motion, 
Patterson,  the  eminent  Whig,  expressed  the  hope  that  it 
would  receive  a  unanimous  vote;  the  constitution  had  de- 
fects, but  there  was  far  more  in  it  to  approve.  Henry  C. 
Murphy  thought  the  good  over-balanced  the  evil,  but  pro- 
tested against  provisions  which,  he  feared,  authorized  pri- 
vate property  to  be  taken  for  certain  private  purposes. 
Worden  considered  the  document  on  the  whole  an  im- 
provement in  the  science  of  government.  Stow  believed 
it  would  not  meet  the  first  expectation  of  the  State  or  the 
country.  Dana  protested  against  the  principle  of  making 
constitutional  distinctions  between  citizens  on  account  of 
color.  Chamberlain  frankly  confessed  that  he  had  voted 
against  the  convention,  and,  while  he  dissented  from  part 
of  the  constitution,  yet  there  were  bright  spots  in  it  and 
he  should  sustain  it  as  a  whole  with  pleasure.  He  would 
have  given  the  people  an  opportunity  to  express  their  judg- 
ment upon  each  article;  but  the  convention,  following  the 
example  of  the  Convention  of  1821,  declined  to  submit  each 
article  separately,  and  the  fourteen  articles  were  therefore 
submitted  for  popular  approval  as  a  whole.  Hoffman, 
elated  by  his  success  in  embodying  the  guarantees  of  the 
act  of  1S42  in  the  constitution,  declared  that  the  new  or- 


STATE   OF    NEW   YORK  173 

ganic  law  contained  more  excellent  matter  than  any  other 
constitution.  Ira  Harris  pronounced  it  the  best  ever 
framed.  Cambreleng  said  that  it  had  made  the  legislative, 
judicial,  and  executive  departments  distinct  in  reality  as 
well  as  in  name.  But  Charles  O' Conor,  who  had  dissented 
from  the  work  of  the  judiciary  committee,  and  who  seems 
to  have  disapproved  many  features  of  the  constitution,  did 
not  hesitate  to  call  it  a  signal  failure.^ 

To  Hoffman  the  convention  assigned  the  duty  of  draft- 
ing its  address  to  the  people.  The  address  thus  sums  up 
the  work  of  the  delegates : 

"In  these  fourteen  articles,  they  have  reorganized  the  legislature, 
established  more  limited  districts  for  the  election  of  the  members  of 
that  body,  and  wholly  separated  it  from  the  exercise  of  judicial  power. 
The  most  important  state  officers  have  been  made  elective  by  the  people 
of  the  state;  and  most  of  the  officers  of  cities,  towns  and  counties  are 
made  elective  by  the  voters  of  the  locality  they  serve.  They  have  abol- 
ished a  host  of  useless  offices.  They  have  sought  at  once  to  reduce  and 
decentralize  the  patronage  of  the  executive  government.  They  have 
rendered  inviolate  the  funds  devoted  to  education.  After  repeated 
failures  in  the  legislature  they  have  provided  a  judicial  system,  ade- 
quate to  the  wants  of  a  free  people  rapidly  increasing  in  arts,  culture, 
commerce  and  population.  They  have  made  provision  for  the  payment 
of  the  whole  state  debt  and  the  completion  of  the  public  works  begun. 
While  that  debt  is  in  progress  of  payment  they  have  provided  a  large 
contribution  from  the  canal  revenues  towards  the  current  expenses  of 
the  state  and  sufficient  for  that  purpose  when  the  state  debt  shall  have^^ 
been  paid;  and  have  placed  strong  safeguards  against  the  recurrence 
of  debt  and  improvident  expenditures  of  the  public  money.  They  have 
agreed  on  important  provisions  in  relation  to  the  mode  of  creating 
incorporations  and  the  liability  of  their  members  and  have  sought  to 
render  the  business  of  banking  more  safe  and  responsible.  They  have 
incorporated  many  useful  provisions  more  effectually  to  secure  the  peo- 
ple in  their  rights  of  person  and  property  against  the  abuses  of  dele- 
gated power.  They  have  modified  the  power  of  the  legislature  with 
the  direct  consent  of  the  people  to  amend  the  constitution  from  time 
to  .time  and  have  secured  to  the  people  of  the  state  the  right  once  in 
twenty  years  to  pass  directly  on  the  question  whether  they  will  call  a 
convention  for  the  revision  of  the  constitution." 


*  Regarding  the  new  constitution,  Daniel  Webster  wrote  Weed 
in  November,  1846,  as  follows :  "There  is  much  in  it  that  is  wrong  in 
my  judgment,  but  then  there  is  much  in  it  that  is  right,  and  the  good, 
I  think,  is  likely,  in  time,  to  root  out  the  evil" 


174  CONSTITUTIONAL   HISTORY 

In  the  sober  light  of  history,  the  address  seems  a  pane* 
gyric.  Much  was  indeed  accompHshed,  yet  much  then  done 
has  since  been  undone.  DecentraHzation  was  carried  to  an 
extreme.  Whether  important  State  officers  should  be  elect- 
ed by  the  people  or  appointed  by  the  executive  in  accord- 
ance with  the  plan  of  the  Federal  government  has  often 
since  been  discussed.  The  convention  itself  was  not  a  unit 
in  its  treatment  of  the  judicial  system,  and  changes  since 
made  show  that  it  had  not  reached  the  ideal.  Its  hybrid 
court  of  appeals  was  a  mistake,  and  its  creation  of  an  elec- 
tive judiciary  holding  for  brief  terms  was  an  error  par- 
tially repaired  after  twenty  years'  experience.  Longer 
terms  for  judges  have  since  been  adopted,  but  their  choice 
by  popular  vote  is  still  continued.  The  constitutional  enun- 
ciations forced  by  the  anti-rent  sentiment  have  been  de- 
clared unnecessary  and  in  some  instances  unwise.  The  con- 
vention contributed  almost  nothing  to  the  solution  of  mu- 
nicipal problems.  The  subject  of  municipal  government 
was  superficially  treated — as  Governor  Tilden  pointed  out 
in  his  municipal  reform  message  in  1875.  Henry  C.  Mur- 
phy pleaded  in  vain  for  provisions  for  the  incorporation 
of  cities  under  general  laws.  And  in  less  than  a  decade 
the  carefully  formulated  canal  policy  was  to  undergo  radi- 
cal change. 

In  185 1,  upon  the  recommendation  of  Governor  Wash- 
ington Hunt,  a  bill  was  passed  to  anticipate  the  revenues  of 
the  canals  by  the  issue  of  certificates  amounting  to  $9,000,- 
000  for  the  immediate  enlargement  of  the  Erie  Canal  and 
the  completion  of  the  Genesee  Valley  and  Black  River 
canals.  The  constitutionality  of  this  measure  was  upheld 
not  only  by  Attorney  General  John  C.  Spencer,  who  had 
been  one  of  the  members  of  the  statutory  revision  commis- 
sion of  1830,  but  also  by  Daniel  Webster  and  Rufus  Choate. 
It  was  not  carried  in  the  regular  session,  as  eleven  Demo- 
cratic senators  prevented  a  quorum  by  resigning  their  seats. 
In  the  extra  session,  re-enforcements  to  the  cause  were  ob- 


STATE    OF    NEW    YORK  175 

tained  as  a  result  of  the  elections  held  to  fill  the  senatorial 
vacancies  occasioned  by  these  resignations.  Despite  the 
formidable  array  of  opinion  in  favor  of  the  measure,  it  was*' 
deemed  by  many  to  be  a  palpable  violation  of  the  constitu- 
tion. Tilden,  who  had  been  a  colleague  of  Hoffman's  in 
the  canal  committee  of  the  convention,  powerfully  attacked 
it  in  a  letter  to  the  Albany  Atlas,  in  April,  185 1,  in  which 
he  emphasized  the  necessity  of  adhering  to  the  salutary 
policy  of  the  constitution,  and  declared  that  he  owed  it  to  ^ 
the  memory  of  Michael  Hoffman,  "by  whom  these  pro- 
visions of  the  constitution  were  mainly  prepared,  and  to 
whom  they  were  an  imperishable  monument,"  to  show  that 
his  work  was  not  so  imperfectly  done  that  the  measure  pro- 
posed could  ever  be  invested  with  the  authority  of  law 
while  the  constitution  remained  unchanged.  The  canal 
auditor  refusing  to  draw  a  warrant  for  the  payment  of  a 
claim  that  had  been  allowed  by  the  canal  commissioners,  a 
mandamus  was  sought,  which  was  granted  in  the  courts  * 
below,  but  the  court  of  appeals,  after  elaborate  argument 
by  most  eminent  lawyers,  pronounced  the  statute  unconsti- 
tutional, only  one  judge  dissenting.^  The  defeat  of  this 
legislation  stimulated  the  Whigs  to  renewed  efforts;  a 
resolution  was  carried  through  two  successive  legislatures 
for  an  amendment  to  section  3  of  article  VH  of  the  consti- 
tution, and  this  was  ratified  by  the  people  at  a  special  elec-  ** 
tion  February  15,  1854.  The  amendment  put  at  the  dispo- 
sition of  the  canal  commissioners  the  sum  of  two  and  a 
half  million  dollars  annually  for  four  years  for  canal  im- 
provements. There  was  wisely  added  to  the  section  a  pro- 
vision that  all  contracts  for  work  or  materials  on  any  canal 
should  be  made  with  the  person  offering  to  "do  or  provide 
the  same  at  the  lowest  price  with  adequate  security  for 
their  performance."  Canal  contracts  had  constituted  a 
valuable   source  of   party   patronage.      Abuses  grew   and 


•  Newell  V.  People,  7  N.  Y.,  9. 


176  CONSTITUTIONAL   HISTORY 

flourished  until  the  canals  became  a  public  scandal.  The 
Convention  of  1867  sought  a  remedy  by  changing  the 
method  of  their  administration,  but  all  the  work  of  that 
convention,  save  its  judiciary  article,  failed  of  public  ap- 
proval. Later,  Governor  Tilden  vigorously  undertook  to 
stop  the  ^'canal  frauds." 

Allusion  has  been  made  to  the  sections  added  to  the  bill 
of  rights  at  the  instance  of  the  anti-renters.  The  Conven- 
tion of  1846,  following  the  language  of  the  Convention  of 
1 82 1,  declared  all  lands  within  the  State  to  be  allodial.  It 
added  two  new  sections :  one  providing  that  no  lease  or 
grant  of  agricultural  land  for  a  longer  period  than  twelve 
years  thereafter  made  in  which  any  rent  or  service  of  any 
kind  was  reserved  should  be  valid,  and  the  other  declaring 
that  all  fines,  quarter  sales,  or  other  like  restraints  upon 
alienations  reserved  in  any  grant  of  land  thereafter  made 
should  be  void.  This  latter  provision  in  particular  was  de- 
manded in  order  constitutionally  to  guarantee  the  per- 
manence of  the  legislation  of  1846,  which  had  been  secured 
by  the  tenants  of  the  great  estates  in  obedience  to  sentiment 
generally  entertained  throughout  the  State. 

The  origin  and  progress  of  the  anti-rent  controversy 
may  briefly  be  explained.  The  dispute  between  New  York 
and  Massachusetts  had  been  settled  in  1786  by  the  cession 
by  Massachusetts  to  New  York  of  certain  land  ^^  in  the 
western  part  of  this  State,  now  including  the  city  of  Buffalo, 
and  Massachusetts  was  given  the  right  to  extinguish  the 
Indian  title  by  treating  with  the  native  Indians.  In  1791  it 
made  conveyances  of  about  five  million  acres  to  the  famous 
banker,  Robert  Morris,  of  Philadelphia,  who  in  turn  con- 
veyed to  the  Holland  Land  Company.  The  leases  made  by 
this  company  were  similar  in  many  features  to  the  leases 
made  by  the  patroons  and  owners  of  manors.  During  the 
Dutch  rule,  vast  estates  had  been  acquired  by  the  patroons 

"The  cession  included  what  was  then  known  as  "The  Genesee 
Country,"  and  also  the  counties  of  Broome  and  Tioga. 


STATE   OF   NEW   YORK  177 

in  counties  fringing  the  Hudson  River,  particularly  Al- 
bany, Columbia,  and  Rensselaer.  Enormous  grants  had 
been  made  by  some  English  governors  to  themselves  and 
their  favorites,  which  were  the  subject  of  letters  from 
Lord  Bellomont,  when  governor  of  the  colony,  to  the 
Board  of  Trade.  In  one  of  these  letters  (January  2,  1701) 
he  declared  that  seven  million  acres  of  land  had  been  dis- 
posed of  in  thirteen  patents.  In  many  instances  Indians 
had  been  persuaded  into  parting  with  their  title  to  large 
speculators.  Thus  a  great  portion  of  the  fertile  territory 
of  the  State  had  become  concentrated  in  the  hands  of  a 
few  persons.  At  the  date  of  its  independence,  the  State 
still  owned  more  than  seven  millions  of  acres  of  unappro- 
priated land.  In  1791  the  legislature,  to  supply  needed 
funds,  passed  a  law  authorizing  the  commissioners  of  the 
land  office  (of  whom  Aaron  Burr,  then  attorney  general, 
was  one)  to  dispose  of  this  enormous  territory  in  such 
parcels,  on  such  terms,  and  in  such  manner  as  they  should 
judge  most  conducive  to  the  public  welfare.  Under  this 
law  more  than  five  and  a  half  million  acres  of  land  were 
transferred  to  a  few  large  investors  at  trivial  prices.  One 
sale  seemed  the  climax  of  prodigality — 3,635,200  acres 
were  sold  to  Alexander  McComb  at  eight  pence  per  acre. 
Payment  was  to  be  made  in  five  annual  instalments,  with- 
out interest  or,  at  his  option,  for  cash  at  a  discount,  which 
made  the  net  price  about  seven  cents  per  acre.  The  action 
of  the  commissioners  was  bitterly  criticised,  but  the  house 
by  a  vote  of  35  to  20  approved  their  conduct  and  declared 
the  sales  judicious. ^^ 


""Memoirs  of  Aaron  Burr,"  by  Matthew  L.  Davis,  I,  328,  329. 
The  extent  to  which  the  people's  patrimony,  the  land  of  the  state,  was 
sold  at  absurdly  low  prices  or  was  allowed  by  officials  to  pass  into 
private  ownership  is  simply  appalling.  From  the  days  of  the  colonial 
governors  down  almost  to  the  end  of  the  eighteenth  century,  valuable 
forest  and  arable  tracts  and  mines  and  ores  were  disposed  of  in  this 
manner.  But  history  keeps  constantly  repeating  itself.  If  today  there 
are  no  broad  acres  for  the  public  to  retain  it  has  nevertheless  resources 


178  CONSTITUTIONAL   HISTORY 

The  manor  lords  and  capitalists,  to  whom  this  imperial 
domain  had  passed,  usually  made  leases  in  fee  or  for  long 
terms,  reserving  the  old  rights  of  feudal  service.  George 
C.  Clyde,  of  Columbia  county,  in  the  Convention  of  1846, 
in  depicting  the  evils  suffered  by  the  lessees,  spoke  of  the 
"cunningly  devised"  clauses  which  reduced  the  tenants  to 
mere  serfs  and  vassals  of  their  feudal  superiors.  '*The 
restrictions  on  the  right  of  alienation — the  reservation  of 
wood,  water,  minerals,  mill  streams,  and  privileges — the 
quarter  sales,  the  two  fat  fowls  and  day's  labor  drawing 
manure — the  covenants  requiring  the  tenant  to  go  to  the 
landlord's  mill  on  pain  of  forfeiting  his  whole  estate — and 
the  thousand  and  one  other  little  mean,  degrading  cove- 
nants, a  violation  of  any  one  of  which  by  the  tenant  works 
a  forfeiture  of  the  whole  estate — the  right  stipulated  for 
by  the  landlords  to  do  whatever  they  please  and  the  cove- 
nants exacted  of  the  tenants  that  they  shall  do  nothing  as 
they  please, — is  all  of  a  piece  from  beginning  to  end." 
Mixed  with  some  rhetorical  exaggeration,  there  was  much 
truth  in  Clyde's  denunciation.  Rents  due  to  the  patroon 
Stephen  Van  Rensselaer  had  long  been  in  arrears,  as  his 
policy  to  tenants  was  one  of  leniency,  and  the  accumulations 
had  surpassed  the  ability  of  tenants  to  pay.  Upon  his 
death  in  1839,  the  attempts  of  his  successors  to  enforce  the 
harsh  covenants  and  conditions  of  leases,  which  would  have 
resulted  in  evicting  great  numbers  of  the  yeomanry  from 
their  homes,  brought  the  anti-rent  controversy  to  a  head. 
It  grew  in  violence  during  the  administrations  of  Governors 
Marcy  and  Seward,  and  culminated  in  bloodshed  and  the 
calling  out  of  the  militia  by  Governor  Wright  in  1846. 

As  has  so  often  happened  in  history,  while  one  side  was 
within  its  strict  legal  rights,  an  overwhelming  public  senti- 
ment was  opposed  to  its  assertion  of  them.     The  proprie- 

of  untold  wealth  to  conserve,  yet  these  are  too  often  dealt  with  as  our 
ancestors  dealt  with  public  lands.  Whilst  inveighing  against  them  for 
their  errors  we  follow  the  like  evil  and  reckless  policy. 


STATE   OF   NEW    YORK  179 

tors  stubbornly  insisted  on  enforcing  covenants  and  condi- 
tions as  to  rent,  fines,  and  quarter  sales  which  had  been  in- 
serted in  the  deeds  or  leases  made  by  them  and  accepted  by 
their  tenants  and  by  purchasers.  The  grantees  and  ten- 
ants contended,  on  the  other  hand,  that  the  principles  of 
feudal  ownership  were  hostile  to  the  constitution  and  the 
policy  of  the  State,  and  tended  to  retard  its  development 
and  create  class  distinctions.  Such  feudal  regulations,  it 
was  urged  by  the  occupants,  would,  if  enforced,  deprive 
tenants  of  all  sense  of  manhood  and  independence.  These 
differences  were  on  their  way  to  adjustment  months  before 
the  Convention  of  1846  assembled.  The  legislature  of  1845 
was  flooded  with  petitions  from  the  representatives  of  the 
tenants,  who  appeared  before  a  committee  of  the  assembly, 
of  which  Samuel  J.  Tilden  was  chairman,  and  advocated 
taxation  of  the  interests  reserved  in  long-term  leases;  abo- 
lition of  distress  for  rent;  and  a  law  enabling  the  tenant 
to  dispute  the  title  of  his  landlord.  Tilden,  as  chairman  of 
the  committee,  presented  to  the  assembly  a  report  contain- 
ing a  thorough  and  dispassionate  review  of  the  issues  be- 
tween the  tenants  and  the  landlords.  The  report  approved 
the  first  two  measures  advocated  by  the  tenants  and  disap- 
proved the  third. 

Two  bills  drafted  by  the  committee  were  enacted  into 
law,  the  one  providing  for  taxation  in  the  locality  where 
the  land  lay,  of  the  rents  reserved  upon  perpetual  leases, 
leases  for  lives  and  for  twenty-one  years  or  more ;  and  the 
other  abolishing  all  distress  for  rent.  The  committee  also 
matured  a  bill  prohibiting  future  leases  of  agricultural  land 
for  a  period  exceeding  ten  years.  The  bill,  said  Tilden, 
proposed :  *'by  the  exercise  of  the  unquestionable  power  of 
the  legislature  over  the  statutes  of  devises  and  descents,  to 
provide  at  a  future  and  not  very  distant  period  for  the 
commutation  on  equitable  principles  in  chancery  of  the 
rights  and  interests  of  the  landlords,  and  the  conversion  of 
them  into  mortgages  payable  at  once  or  in  reasonable  in- 


i8o  CONSTITUTIONAL   HISTORY 

stalments."  ^^  As  to  the  reservation  of  quarter  and  other 
proportional  sales  and  charges  upon  alienation,  which  was 
a  common  feature  of  these  harsh  leases  in  fee,  the  report 
declared  that  they  were  not  believed  to  be  valid.  "A  gen- 
eral condition  in  a  conveyance  in  fee  not  to  alien  was  set- 
tled in  this  State  to  be  void,  as  contrary  to  public  policy." 
There  is  an  interesting  resemblance  between  Tilden's  rea- 
soning and  that  of  Chief  Judge  Ruggles,  of  the  court  of 
appeals,  some  years  later,  when  that  court  declared  such 
restraints  upon  fee  ownership  absolutely  void.  Tilden's 
report  and  the  legislation  which  followed  it  were  undoubt- 
edly potent  in  bringing  anti-rent  troubles  to  an  end. 

The  legislation  of  1846  really  supplied  adequate  remedy, 
but  the  feeling  prevailed  in  the  manor  counties  that  a  con- 
stitutional declaration  was  essential  to  guarantee  its  per- 
manence. Discussion  of  Clyde's  resolution  was  brief,  as 
the  lawyers  of  the  convention  seem  to  have  felt  little  inter- 
est in  the  subject.  Ruggles,  afterward  author  of  the  opin- 
ion in  DePeyster  v.  Michael,  wished  to  hear  what  benefit 
would  result  from  such  constitutional  provisions  to  those 
who  demanded  relief.  The  legislature  had  ample  power  to 
deal  with  the  subject,  and  there*  was  no  likelihood  that  it 
would  ever  assume  to  re-establish  feudal  tenures.  Judge 
Brown  objected  to  the  prohibition  of  the  right  of  an  agri- 
cultural owner  to  lease  his  land  for  a  long  term,  as  an  un- 
constitutional limitation  upon  free  alienation  of  property. 
Others  affirmed  that  these  tenures  were  disastrous  to  agri- 
culture and  had  a  tendency  to  degrade  the  character  of  ten- 
ants— an  opinion  expressed  more  than  once  by  Governors 
Marcy,  Seward,  and  Wright.  The  length  of  permitted 
agricultural  leases  reserving  rent  or  service  was  reduced  to 
twelve  years.  The  law  of  tenures  is  elaborate  and  perplex- 
ing; the  judgments  which  support  the  invalidity  of  these 
restraints  upon  free  alienation  of  land  differ  in  their  as- 


"  Bigelow,  **Lif  e  and  Letters  of  Samuel  J.  Tilden.* 


STATE   OF   NEW   YORK  i8i 

sumptions  and  reasoning.  It  was  Judge  Ruggles'  opinion 
that  the  statute,  quia  emptores,  had  never  become  part  of 
the  colonial  law  of  New  York,  and  was  first  introduced 
into  the  civil  polity  of  the  State  in  1787.  In  the  celebrated 
case  of  Rensselaer  v.  Hays,  Chief  Justice  Denio  decided 
on  the  contrary  that  the  statute  had  always  been  in  force 
in  the  colony,  and  that  its  re-enactment  in  1787  did  not 
tend  to  show  that  it  had  not  the  force  of  law  prior  to  that 
time.  Since  1846  the  last  vestige  of  feudal  tenures  has 
disappeared,  but  whether  the  restraint  upon  agricultural 
leases  which  has  ever  since  been  retained  in  the  constitution 
is  wise,  remains  to  be  seen. 


i82  CONSTITUTIONAL   HISTORY 


CHAPTER  X 

FLUCTUATIONS  IN  CONSTITUTION  OF  JUDICIAL  DEPARTMENT 

PERMANENT  TENURE  IN  THE  HIGHER  COURTS  UNDER 

THE    FIRST    CONSTITUTIONS UNCERTAINTY    OF   TENURE 

IN    COLONIAL   DAYS ENGLISH    JUDICIARY    BEFORE    WIL- 
LIAM   III REMOVALS   OF  INFERIOR  JUDGES   BY   COUNCIL 

OF   APPOINTMENT DEFECTS   IN   THE   JUDICIARY   UNDER 

CONSTITUTION  OF   1 82 1 UNWISE  SOLUTION  ATTEMPTED 

IN    1846 POPULAR  ELECTION   THE  CREED  OF  THE  TIME 

BRIEF    ANALYSIS    OF    JUDICIAL    SYSTEM    AS    RECONSTI- 
TUTED IN   1846 RIGHT  OF  JUDGES  TO  SIT  IN  REVIEW  OF 

THEIR     OWN     DECISIONS NEW     YORK     NOT     THE    FIRST 

STATE  TO  ADOPT  ELECTIVE  JUDICIARY REACTION  SINCE 

1846  IN  VARIOUS  STATES  IN   FAVOR  OF  APPOINTIVE  SYS- 
TEM  OR  LONGER  JUDICIAL  TERMS TREATMENT  OF  THE 

JUDICIARY    BY    THE    CONSTITUTIONAL    CONVENTION    OF 

1867 JUDICIARY    COMMITTEE    OF    THE    CONVENTION 

THE  MAJORITY  AND  THE  MINORITY  REPORT  TO  THE  CON- 
VENTION  LENGTHENING    OF    JUDICIAL    TENURE DALY 

UPON  THE  CONVENTION  OF    1 846  AND  ITS  ADOPTION  OF 

THE    ELECTIVE    SYSTEM    WITHOUT    DISCUSSION EVARTS 

ADVOCATES  TENURE  DURING  GOOD  BEHAVIOR VOTES  OF 

THE  CONVENTION  OF   1 867  UPON  THIS  SUBJECT QUES- 
TIONS   AFFECTING    THE    JUDICIARY    SUBMITTED    BY    THE 

CONVENTION    TO   THE    PEOPLE ORGANIZATION    OF    NEW 

COURT  OF  APPEALS. 

"There  seems,"  says  a  recent  historian  of  the  Constitu- 
tions of  New  York/  "to  be  no  permanency  in  our  judicial 


*  Charles  Z.  Lincoln. 


STATE   OF   NEW   YORK  183 

system.  Its  fluctuations  have  been  very  marked,  both  in 
organization  and  detail.  In  this  respect  it  presents  a  strik- 
ing contrast  to  the  other  great  departments  into  which  our 
government  is  divided."  The  truth  of  this  observation  must 
impress  every  student  of  the  history  of  the  State  judiciary. 

The  best  feature  of  the  judiciary  system  under  the  first 
two  constitutions  was  the  permanent  tenure  of  the  judges 
of  the  higher  tribunals.  There  had  been  no  permanency 
during  the  colonial  regime.  The  province  had  its  court  of 
chancery  and  its  supreme  court;  the  governor,  who  sat  as 
chancellor,  was  removable  at  the  king's  pleasure,  and  the 
judges  of  the  supreme  court  were  at  first  appointed  by  the 
governor,  and  held  ofiice  at  his  will.  During  the  adminis- 
tration of  Lord  Bellomont,  Attwood  was  appointed  chief 
justice  by  the  sovereign,  his  appointment  being  by  warrant 
or  mandamus  (which  was  the  usual  mode  of  appointing 
judges  for  the  colony),  requiring  the  governor  to  commis- 
sion him  by  letters  patent  under  his  own  signature  and  the 
seal  of  the  province.  This  mode  of  appointing  the  chief 
justice  was  with  one  exception  followed  thereafter,  his 
tenure  depending  upon  the  sovereign's  will.  The  puisne 
judges  continued  as  before  to  be  commissioned  by  the  gov- 
ernor and  to  hold  ofiice  during  his  pleasure.  "A  tenure  so 
precarious  was  productive  of  very  injurious  consequences. 
It  not  only  lessened  the  independence  of  the  judges,  but 
as  they  were  generally  members  of  the  council,  and  conse- 
quently mixed  up  with  all  the  political  questions  of  the 
day,  they  were  liable  to  be  removed,  and  many  were  re- 
moved upon  the  change  of  parties."  ^ 

Upon  the  death  in  1760  of  Chief  Justice  Delancey, 
whose  commission  had  by  way  of  compliment  run  during 
good  behavior,  the  assembly,  with  the  idea  of  rendering 
the  judges  independent  of  either  governor  or  king,  passed 
an  act  for  the  reappointment  of  judges  upon  the  like  tenure, 


*  Hon.  C.  P.  Daly  in  i  E.  D.  Smith,  Ixi. 


i84  CONSTITUTIONAL   HISTORY 

but  Lieutenant  Governor  Colden  refused  his  assent  to  it. 
In  1763  the  assembly  petitioned  George  III.  to  make  the 
appointment  of  judges  run  during  good  behavior.  This 
memorial,  which  urged  the  example  set  by  William  of 
Orange  upon  his  accession  to  the  British  throne,  was  re- 
ferred to  the  Treasury  Board,^  of  which  Lord  North  was  a 
member,  but  his  influence  was  successfully  exerted  against 
the  colonists.  Throughout  the  residue  of  the  colonial  pe- 
riod, the  tenure  of  the  judges  as  well  as  their  salary  re- 
mained dependent  upon  the  crown.  The  Convention  of 
1777,  as  has  been  seen,  provided  that  the  chancellor,  the 
judges  of  the  supreme  court,  and  the  first  judge  of  the 
county  court  in  every  county  should  hold  their  commissions 
during  good  behavior  or  until  they  respectively  attained  the 
age  of  sixty  years.  With  these  exceptions  the  tenure  of  all 
judicial  officers  was  unfortunately  during  the  pleasure  of 
the  appointing  power.  Inasmuch  as  the  establishment  of 
the  Federal  judiciary  did  not  take  place  until  1789,  Jay  and 
his  associates  in  the  Convention  of  1777  must  have  derived 
their  idea  of  permanency  in  the  judicial  office  from  Eng- 
lish models. 

The  principle  of  a  tenure  for  judges  to  continue  during 
good  behavior  had  its  inception  under  the  Act  of  Settle- 
ment in  1689,  after  the  accession  of  William  of  Orange  to 
the  English  throne.  In  Lord  Coke's  time  the  barons  of  the 
exchequer  had  been  created  to  hold  office  during  good  be- 
havior, and  Charles  II.  signalized  his  restoration  to  the 
crown  by  issuing  commissions  to  common  law  judges 
quamditi  se  bene  gesserint,  but  all  such  commissions  were 
revocable  at  his  pleasure.  James  II.,  bent  upon  securing 
judicial  sanction  for  his  exercise  of  a  palpably  unconstitu- 
tional power,  found  even  the  Tory  judges  of  Westminster 
inflexible  in  their  opposition.  '']or\t^''  says  Macaulay,  "the 
chief  justice  of  the  common  pleas,  a  man  who  had  never 

'Which  had  charge  of  the  affairs  of  the  colonies  (see  Bancroft, 
"History  of  United  States,"  II,  556). 


STATE   OF   NEW   YORK  185 

before  shrunk  from  any  drudgery,  however  cruel  or  servile, 
now  held  in  the  royal  closet  language,  which  might  have 
become  the  purest  magistrate  in  our  history.  He  was  told 
that  he  must  give  up  either  his  opinion  or  his  place.  Tor 
my  place,'  he  answered,  T  care  little;  I  am  old  and  worn 
out  in  the  service  of  the  crown,  but  I  am  mortified  to  find 
that  your  Majesty  thinks  me  capable  of  giving  a  judgment 
which  none  but  an  ignorant  or  a  dishonest  man  could  give.' 
T  am  determined,'  said  the  king,  'to  have  twelve  judges 
who  shall  be  all  of  my  mind  as  to  this  matter.'  'Your  Maj- 
esty,' answered  Jones,  'may  find  twelve  judges  of  your 
mind,  but  hardly  twelve  lawyers.'  He  was  dismissed,  to- 
gether with  Montague,  Chief  Baron  of  the  Exchequer,  and 
two  puisne  (associate)  judges,  Neville  and  Charlton."  The 
constitutional  guarantee  against  future  subversion  of  judi- 
cial independence  erected  by  parliament  upon  William's 
accession  stimulated  other  European  nations  to  follow  Eng- 
land's example,  and  rescue  the  judiciary  from  Montes- 
quieu's reproach, — that  it  was  the  weakest  department  of 
government. 

It  was  fortunate,  indeed,  that  authority  to  remove 
judges  of  the  upper  courts  was  not  vested  in  the  council  of 
appointment,  which  for  acts  of  pitiless,  machine  tyranny 
has  never  been  surpassed  in  the  annals  of  the  State.  This 
political  guillotine  was  constantly  busy.  Inferior  magis- 
trates were  often  made  to  feel  its  fatal  power.  When,  in 
1804,  Radcliff  resigned  his  place  in  the  supreme  court,  the 
council  raised  Ambrose  Spencer,  attorney  general,  to  his 
office  and  deposed  Van  Ness,  a  young  Federalist  lawyer 
of  eminence,  from  the  place  of  surrogate  of  Columbia 
county;  yet  this  same  Van  Ness,  notwithstanding  his  re- 
moval from  the  post  of  surrogate,  was  judged  worthy  to  sit 
alongside  of  Spencer  in  the  supreme  court  in  after  years. 
Van  Buren,  who  was  appointed  surrogate  of  the  same 
county  in  1808,  underwent  similar  deposition  in  18 13,  when 
the  Federalists  obtained  control  of  the  council.     This  sys- 


i86  CONSTITUTIONAL   HISTORY 

tern  of  reprisals  was  maintained  until  the  second  constitu- 
tion abolished  the  council.  The  framers  of  that  organic 
law,  while  providing  that  the  chancellor  and  supreme  court 
judges  should  hold  office  during  good  behavior,  ought  to 
have  abolished  the  early-age  retirement.  A  further  mis- 
take was  made  in  limiting  the  term  of  county  judges  to  five 
years.  The  defects  which  the  Convention  of  1846  found  in 
the  judicial  system  were,  according  to  Judge  Charles  P. 
Daly  (as  stated  in  a  speech  made  by  him  in  the  Convention 
of  1867),  that  the  union  of  legislature  and  judges  in  the 
court  of  errors  was  incongruous;  that  a  separate  court  of 
chancery  was  unnecessary;  that  the  scheme  devised  in  1821 
by  which  the  circuit  judges  tried  causes  while  the  supreme 
court  justices  heard  appeals,  had  worked  badly  and  been 
universally  condemned;  and  that  a  supreme  court  of  three 
justices  holding  sessions  at  four  different  places  in  the  State 
was  insufficient  for  public  business  and  inconvenient  to  the 
profession.  The  remedy  adopted  in  1846  was  the  creation 
of  a  supreme  court  of  many  branches,  with  justices  sitting 
simultaneously  in  different  parts  of  the  State,  and  a  court 
of  appeals,  one-half  of  whose  rnembers  sat  for  eight  years 
while  the  other  half  changed  every  year,  and  it  was  vainly 
hoped  that  by  the  establishment  of  courts  of  conciliation 
the  volume  of  litigation  would  be  diminished.  But  the 
solution  proposed  in  1846  proved  no  panacea,  for  litigation 
grew  in  amount,  reported  cases  multiplied  beyond  anticipa- 
tion, and  suitors  rarely  attempted  arbitration  of  their  differ- 
ences. Besides  reconstituting  the  courts,  the  convention 
made  judges  elective,  and  required  their  election  at  short 
intervals,  with  the  mistaken  idea  of  making  them  directly 
responsible  to  the  people. 

The  disordered  condition  of  the  finances  of  the  State 
prior  to  the  act  of  1842,  and  the  necessity  for  making  that 
law  irrepealable  by  a  constitutional  pledge  of  State  reve- 
nues to  the  redemption  of  the  State  debt  and  for  putting  a 
constitutional  check  upon  the  loan  of  State  credit  to  pri- 


STATE   OF   NEW   YORK  187 

vate  capital,  were  the  chief  motives  for  the  popular  de- 
cision to  call  a  convention.  Deeper  and  more  general  causes 
than  widespread  desire  to  get  rid  of  debt  were  simultane- 
ously at  work,  and  these  causes  profoundly  influenced  the 
convention's  proceedings.  In  the  seventy  years  of  its  ex- 
istence, the  poHtical  character  of  the  State  had  undergone  a 
revolution.  Under  the  first  constitution  the  vote  for  gov- 
ernor and  for  senators  was  Hmited  to  owners  of  land  in  fee 
or  freehold,  and  in  the  choice  of  assemblymen  only  property- 
holders  participated.  In  1826  the  suffrage  was  placed  upon 
a  broader  foundation,  but  it  remained  partly  theoretical 
under  the  second  constitution.  The  democratic  movements 
that  swept  over  America  within  the  succeeding  twenty  years, 
and  were  felt  in  Europe  also,  produced  a  creed  that  de- 
clared frequent  popular  election  the  solvent  for  all  political 
ills.  The  incumbent  of  every  office  should  be  elected  by  the 
people,  and  to  preserve  responsibility  to  the  electors  the 
tenure  of  office  should  be  short.  The  new  cult  attacked  the 
judiciary.  Hence,  the  Convention  of  1846  reported  in 
favor  of  electing  judges,  and  of  substituting  for  the  tenure 
of  good  behavior  a  fixed  term  of  eight  years,  thus  overlook- 
ing the  most  fundamental  consideration — the  independence 
of  the  judge — which  is  completely  attainable  only  with  full 
immunity  from  removal  during  good  behavior,  within  a 
reasonable  age  limit,  whether  the  removing  power  be  gov- 
ernor, legislature,  or  people. 

This  was  the  most  radical  change  proposed  by  the  con- 
vention. The  members  of  the  judiciary  committee,  num- 
bering some  of  the  most  eminent  lawyers  in  the  State, 
among  them  David  Dudley  Field,  Charles  O'Conor,  Charles 
H.  Ruggles,  and  John  W.  Brown,  were  not  in  accord  in 
their  views  as  to  the  reconstitution  of  the  judicial  system. 
This  part  of  the  work  of  the  convention  was  largely  a  mat- 
ter of  compromise,  and  was  pronounced  by  O'Conor  a  "sig- 
nal failure."  The  court  of  impeachment  was  preserved, 
with  the  substitution  of  the  judges  of  the  court  of  appeals 


i88  CONSTITUTIONAL   HISTORY 

for  the  chancellor  and  the  supreme  court  justices;  but  the 
ancient  court  of  errors  was  abolished.  A  clearer  notion  of 
the  distinction  between  legislative  and  judicial  functions 
had  developed  since  this  tribunal,  partly  modeled  on  the 
English  House  of  Lx)rds,  was  created,  and  legislative  duties 
became  more  engrossing.  It  was  said  that  the  court  had 
never  declared  an  act  of  the  legislature  invalid,  and  how, 
it  was  asked,  could  senators  who  had  taken  part  in  framing 
laws  be  expected,  as  members  of  the  court  of  errors,  to  pro- 
nounce unfavorable  judgment  upon  their  own  work?  The 
council  of  revision  had  a  substantial  veto  upon  legislation, 
but  the  second  constitution,  although  it  had  abolished  that 
council,  provided  no  corresponding  check,  for  the  chancel- 
lor and  the  three  supreme  court  justices  formed,  in  the  court 
of  errors,  a  comparatively  uninfluential  minority.  The  new 
court  of  appeals  bore  a  rough  analogy  to  the  former  court 
of  errors,  consisting  partly  of  judges  elected  at  large,  and 
partly  of  judges  designated  from  the  supreme  bench,  the 
latter  corresponding  to  the  chancellor  and  the  judges  of  the 
old  supreme  court.  All  the  senators  had  not  been  lawyers, 
and  it  was  not  intended  that  all  the  judges  elected  at  large 
should  be  drawn  from  the  bar.  According  to  Ruggles,  an 
advocate  of  the  plan,  it  was  meant  to  preserve  a  popula;* 
feature  of  the  old  court,  and  the  presence  of  laymen  not 
educated  in  the  legal  profession  might  in  many  cases  be 
useful.  O' Conor  unsuccessfully  argued  for  a  scheme  to 
make  the  new  court  consist  of  the  lieutenant  governor,  eight 
to  twelve  judges  elected  at  large,  and  two  justices  of  the 
supreme  court,  the  latter  to  have  no  voice  in  reviewing  their 
own  decisions.  The  office  of  circuit  judge  was  abolished, 
for  it  was  believed  to  be  better,  said  Ruggles,  that  judges 
who  assemble  to  re-examine  the  decisions  at  the  circuits 
should  themselves  hold  the  circuit  courts,  and  thus  be 
brought  into  direct  contact  with  the  people  and  their  busi- 
ness. After  a  trial  for  fifty  years  of  the  substituted  plan, 
the  State,  in  1895,  in  a  measure  re-established  the  old  sys- 


STATE   OF   NEW   YORK  189 

tern  of  circuit  judges — in  the  distinction  made  in  that  year 
between  appellate  divisions  and  trial  justices. 

The  Convention  of  1846  created  a  new  supreme  court, 
not  with  the  malevolent  purpose  of  wreaking  vengeance  on 
any  judge  by  abolishing  his  office,  as  had  been  done  in  1821, 
but  because  the  election  of  justices  rendered  a  new  court 
necessary.  For  the  old  term  to  continue  during  good  be- 
havior, with  its  absurd  age  limit,  the  convention  unwisely 
substituted  a  short  term  of  eight  years,  and  dropped  the 
age  limit  altogether.  In  the  organization  of  the  court,  the 
State  was  divided  into  eight  districts.  All  chancery  and 
common-law  jurisdiction  was  vested  in  this  new  tribunal. 
Intermediate  appellate  courts,  designated  as  general  terms, 
were  created,  but  serious  conflict  of  opinion  was  made  pos- 
sible by  the  establishment  of  eight  such  courts  with  co-ordi- 
nate jurisdiction.  The  duties  and  functions  of  the  circuit 
judge  and  of  the  chancellor  were  confided  to  the  supreme 
court  justices  sitting  either  at  nisi  prius  or  at  special  term. 
The  convention  also  erected  surrogates*  courts  into  consti- 
tutional tribunals,  but  scarcely  extended  their  powers.  It 
would  have  been,  and  it  would  now  be,  wise  to  abolish  these 
courts,  and  merge  them  in  the  supreme  court.  Practice  in 
the  surrogates'  courts,  with  their  limited  jurisdiction,  is 
beset  with  technicalities  and  pitfalls  at  almost  every  step, 
and  the  settlement  of  estates  is  thus  rendered  unduly  ex- 
pensive. 

When  the  ancient  court  of  errors  fell,  there  fell  also  the 
interdict  forbidding  the  chancellor  and  the  supreme  court 
justices  from  voting  to  support  their  own  judgments  in 
cases  which  had  previously  come  before  them.  In  the  first 
reported  case  in  the  new  court  of  appeals,*  the  right  of  a 
judge  to  sit  and  vote  in  review  of  his  own  decisions  was 
enunciated.  After  holding  that  there  was  no  disqualifica- 
tion upon  judicial  officers  not  expressly  contained  in  the  new 


*  Pierce  v.  Delamater,  i  Comst.  17. 


190  CONSTITUTIONAL   HISTORY 

constitution,  Judge  Bronson  said :  "There  is  nothing  in  the 
nature  of  the  thing  which  makes  it  improper  for  a  judge  to 
sit  in  review  upon  his  own  judgments.  If  he  is  what  a 
judge  ought  to  be — wise  enough  to  know  that  he  is  falHble, 
and  therefore  ever  ready  to  learn ;  great  and  honest  enough 
to  discard  all  mere  pride  of  opinion,  and  follow  truth  wher- 
ever it  may  lead;  and  courageous  enough  to  acknowledge 
his  errors — he  is  then  the  very  best  man  to  sit  in  review 
upon  his  own  judgments.  He  will  have  the  benefit  of  a 
double  discussion.  If  right  at  the  first,  he  will  be  confirmed 
in  his  opinion,  and,  if  wrong,  he  will  be  quite  as  likely  to 
find  it  out  as  any  one  else."  The  reporter  adds  that  Chief 
Judge  Jewett  and  Judges  Ruggles  and  Jones  subsequently 
took  part  in  reviewing  their  own  decisions  in  the  tribunals 
from  which  they  had  come.  That  human  nature,  even  upon 
the  bench,  should  discard  pride  of  opinion  does  not  conform 
with  experience.  All  history  testifies  to  the  inflexibility  of 
individual  opinion,  and  there  is  nothing  to  exempt  the 
wearer  of  the  ermine  from  subjection  to  the  general  law. 
The  constitution  had  taken  a  backward  step  in  expecting  the 
judicial  mind  to  emancipate  itself  from  preconceptions. 
The  Convention  of  1867,  in  revising  the  judiciary  article 
in  the  light  of  intervening  history — most  interesting  his- 
tory, since  it  showed  how  far  the  judges  fell  below  this  im- 
practicable standard — provided  that  no  judge  or  justice 
should  sit  at  a  general  term  or  in  the  court  of  appeals  in 
review  of  a  decision  made  by  him  or  by  any  court  of  which 
he  was  at  the  time  a  sitting  member,  and  this  provision, 
changed  in  1894  by  the  substitution  of  the  words  "appellate 
division"  for  the  words  "general  term,"  has  ever  since  re- 
mained in  the  organic  law. 

New  York  was  not  the  first  State  to  elect  its  higher 
judges.  The  elective  system  had  previously  taken  root  in 
other  States.  In  1832  Mississippi,  by  her  second  constitu- 
tion, provided  for  the  election  of  all  judges  by  the  people ; 
those  of  the  court  of  errors  and  the  chancellor  for  six  years. 


STATE   OF   NEW   YORK  191 

the  circuit  judges  for  four  years.  Within  the  next  four 
years  eleven  other  States — IlHnois,  Wisconsin,  Arkansas, 
CaHfornia,  Pennsylvania,  Missouri,  Virginia,  Alabama, 
Connecticut,  Kentucky,  and  Michigan — followed  the  exam- 
ple of  Mississippi.  Between  1850  and  i860  nine  more 
States  were  added  to  the  list.  The  convention  which,  in 
May,  1846,  framed  Iowa's  first  constitution  made  supreme 
court  judges  elective  for  terms  of  six  years  and  district 
judges  for  terms  of  four  years,  and  its  work  was  ratified  by 
the  people  of  the  State  in  the  following  August.  The  Iowa 
convention  assembled  a  month  before  the  New  York  con- 
vention. 

In  an  address  delivered  before  the  New  York  State  Bar 
Association,  January  18,  1887,  Mr.  Henry  Hitchcock  said: 
"In  i860,  twenty- four  of  the  thirty- four  States  then  com- 
posing the  Union  had  introduced  an  elective  system  to  a 
greater  or  less  extent."  But  this  movement  attained  its 
maximum  in  the  course  of  a  few  years.  "The  changes  since 
i860  indicate  an  opposite  tendency — either  in  the  lengthen- 
ing of  judicial  terms  in  States  still  retaining  the  election,  or 
in  the  abandonment  of  that  system  by  some  States,"  notably 
Virginia,  Louisiana,  Florida,  Maine,  and  Connecticut.  "In 
Pennsylvania,  by  the  new  constitution  of  1873,  the  term 
was  lengthened  from  fifteen  to  twenty-one  years  for  su- 
preme court  judges  and  from  five  to  ten  years  for  other 
judges.  In  Missouri,  the  term  of  supreme  court  judges 
was  lengthened,  in  1875,  from  six  to  ten  years,  and  that  of 
the  judges  of  two  intermediate  appellate  courts,  more  re- 
cently created,  was  made  twelve  years;  in  Ohio,  where, 
since  185 1,  the  constitutional  term  was  five  years,  the  legis- 
lature were  authorized,  in  1883,  to  fix  any  term  not  less 
than  five  years;  in  California,  the  term  of  supreme  court 
judges  was  changed  from  ten  to  twelve  years ;  in  Maryland, 
that  of  all  judges  from  ten  to  fifteen  years."  It  would  have 
been  surprising  had  New  York  long  remained  insensible  to 


192  CONSTITUTIONAL   HISTORY 

influences  operating  so  widely  in  favor  of  a  more  stable 
judicial  tenure. 

In  accordance  with  article  XIII  of  the  constitution  of 
1846,  the  question  was  submitted  to  the  people  of  the  State, 
at  the  general  election  held  in  1866,  whether  a  convention 
should  be  called  to  amend  and  revise  the  constitution.  The 
decision  was  in  the  affirmative,  by  a  vote  of  352,854  in  fa- 
vor of  a  convention,  to  256,364  against  it.  The  legislature 
thereupon  passed  a  law  (chap.  194,  Laws  of  1867)  for  the 
election,  on  the  fourth  Tuesday  of  April  of  that  year,  of  128 
delegates,  four  from  each  senatorial  district,  and  32  dele- 
gates for  the  State  at  large.  As  no  elector  was  permitted  to 
vote  for  more  than  sixteen  of  them,  the  delegates-at-large 
belonged  equally  to  each  of  the  two  parties.  The  conven- 
tion assembled  at  Albany  on  June  4,  1867.  Of  the  district 
delegates  the  Republicans  had  a  majority,  so  that  they  were 
able  to  elect  the  president  of  the  convention,  and,  to  a 
certain  extent,  to  control  its  committees.  The  time  was  not 
favorable  for  the  holding  of  a  constitutional  convention,  as 
partisan  feeling  ran  very  high.  The  conflict  between  Presi- 
dent Johnson  and  the  Congress  of  the  United  States  was 
nearing  its  culmination,  and  the  country  was  disquieted. 
The  presidential  election  was  approaching,  and  it  was  evi- 
dent to  political  managers  that  slight  circumstances  might 
turn  the  scale. 

In  this  convention  the  lawyers  were  in  a  large  majority, 
and  among  them  were  some  of  the  most  prominent  in  the 
State.  Horace  Greeley,  George  William  Curtis,  Erastus 
Brooks,  and  George  Opdyke  were  also  delegates.^  Some  of 
the  ablest  men  in  the  convention  had  been  chosen  delegates- 
at-large.  Hon.  William  A.  Wheeler  was  elected  permanent 
chairman.  The  convention  assembled  on  the  first  Tuesday 
of  June,  1867,  and  closed  its  sessions  on  the  28th  of  Febru- 
ary, 1868.    The  judiciary  committee  included  some  of  the 

''Ira  Harris,  Charles  P.  Daly,  and  Samuel  J.  Tilden  had  been 
members  of  the  Convention  of  1846. 


STATE   OF    NEW    YORK  193 

foremost  members  of  the  bar — George  F.  Comstock,  Wil- 
liam M.  Evarts,  Charles  P.  Daly,  Joshua  M.  Van  Cott, 
Theodore  W.  Dwight,  Francis  Kernan,  Amasa  J.  Parker, 
Matthew  Hale,  Edwards  Pierrepont,  Charles  J.  Folger,  and 
Charles  Andrews,  the  last  two,  with  Sanford  E.  Church, 
also  a  delegate,  destined  to  take  seats  in  the  court  of  appeals. 
It  would  have  been  difficult  to  select  a  committee  more  fully 
representative  of  the  best  elements  of  the  profession. 
Evarts,  then  in  the  meridian  of  his  practice,  shortly  after- 
ward called  to  the  post  of  attorney  general  under  President 
Johnson,  was  pre-eminent,  and  his  arguments  before  the 
convention  rank  among  the  best  specimens  of  his  forensic 
oratory. 

A  majority  of  the  committee  on  the  judiciary  reported 
for  the  election  of  judges  to  hold  office  during  good  be- 
havior or  until  the  age  of  seventy  had  been  reached.  Their 
report  proposed  further  that  at  the  general  election  in  the 
year  1870  there  should  be  submitted  to  the  people,  under 
proper  provisions  to  be  determined  by  the  legislature,  the 
question  whether  future  vacancies  in  the  court  of  appeals, 
the  commission  of  appeals,  the  supreme  court,  and  the  su- 
perior city  courts  should  be  filled  by  appointment  by  the 
governor  with  the  advice  and  consent  of  the  senate.  This 
report  bore  the  signatures  of  Charles  J.  Folger,  chairman, 
William  M.  Evarts,  Joseph  G.  Hasten,  George  Parker, 
Joshua  M.  Van  Cott,  Charles  P.  Daly,  Waldo  Hutchins, 
Francis  Kernan,  Theodore  W.  Dwight,  Amasa  J.  Parker, 
Charles  Andrews,  Edwards  Pierrepont,  and  Matthew  Hale. 
A  minority  report  was  submitted  by  Milo  Goodrich  favor- 
ing the  election  of  court  of  appeals  judges  for  fourteen 
years,  and  of  justices  of  the  supreme  court  for  twelve  years. 
Life  tenure,  he  argued,  would  involve  practical  denial  of 
the  benefits  of  the  elective  system.  He  dissented  from  the 
recommendation  of  the  majority  to  refer  the  question  of 
the  future  election  or  appointment  of  judges  to  popular  vote. 

It  would  be  difficult  to  present  a  brief  sketch  of  the  dis- 


194  CONSTITUTIONAL   HISTORY 

cussion  of  these  topics  in  the  convention.  The  prevailing 
opinion  was  that  a  court  of  last  resort,  composed  of  four 
justices  of  the  supreme  court  having  the  shortest  terms  to 
serve,  and  of  four  judges  elected  at  large  throughout  the 
State,  lacked  the  necessary  elements  of  permanence  and 
stability.  Constant  changes  in  its  personnel  had  impaired 
its  efficiency  and  made  its  decisions  uncertain  and  conflict- 
ing. It  was  found  in  practice  to  take  almost  half  a  year 
before  the  supreme  court  justices  could  work  efficiently 
with  their  more  permanent  brethren  of  the  court,  and  when 
the  desired  efficiency  was  attained,  they  were  obliged  to 
retire  in  favor  of  new  members  recruited  from  the  court 
below.  But  the  convention  found  criticism  easier  than 
constructive  work.  Various  schemes  were  proposed. 
Baker  suggested  a  court  of  appeals  of  nine  members, 
to  hold  office  for  twelve  years ;  Wakeman,  a  court  of  seven 
members  to  hold  for  the  same  period,  six  to  be  elected 
by  the  people,  the  chief  justice  to  be  appointed  by  the  gov- 
ernor and  senate.  Beck  with  proposed  that  the  chief  judge* 
be  appointed  by  the  governor  and  senate  for  fourteen  years, 
and  that  six  associate  judges  be  elected  by  the  people  for 
twelve  years.  Rumsey  wished  the  judges  of  the  existing 
court  of  appeals  to  be  members  of  the  new  tribunal.  Judge 
Comstock  favored  a  court  of  seven  members,  all  to  be  elect- 
ed by  the  people  for  fourteen  years;  the  judges  not  to  hold 
office  beyond  the  age  of  seventy,  nor  be  eligible  to  re-elec- 
tion. Pond  suggested  a  court  of  ten  judges,  composed  of 
the  four  elective  members  of  the  existing  court  and  of  six 
additional  judges — each  voter  to  vote  for  four.  Judge  Lan- 
don  proposed  to  abolish  the  court  of  appeals  and  make  the 
supreme  court  the  ultimate  judicial  tribunal  of  the  State. 
The  final  decision  was  for  a  court  of  seven  members,  con- 
sisting of  a  chief  judge  and  six  associate  judges. 

In  the  debate  upon  the  constitution  of  the  appellate 
branch  of  the  supreme  court,  the  frequently  expressed  con- 
viction was  that  in  the  creation  of  eight  general  terms  the 


STATE    OF    NEW    YORK  195 

Convention  of  1846  had  erred.  Eight  co-ordinate  tribunals 
with  their  divergent  opinions  had  made  the  law  uncertain ; 
had  increased  the  number  of  appeals  to  the  court  of  appeals, 
and  augmented  the  volume  of  litigation.  The  convention 
therefore  voted  to  reduce  the  number  of  general  terms  to 
four.  But  these  conclusions  were  reached  only  after  pro- 
longed and  heated  discussion. 

The  convention  decided  to  lengthen  the  judicial  tenure, 
and  there  was  a  strong  feeling  in  favor  of  the  substitution 
of  an  appointive  for  an  elective  judiciary.  Upon  the  sub- 
ject of  judicial  tenure,  opinions  were  divided,  some  advo- 
cating the  continuance  of  the  eight-year  term;  many,  in- 
cluding some  of  the  ablest  lawyers  in  the  convention,  fa- 
voring a  tenure  to  continue  until  judges  should  have  at- 
tained the  age  of  seventy  years;  others  urging  a  term  of 
fourteen  years  as  a  compromise.  The  terms  of  court  of 
appeals  judges,  of  justices  of  the  supreme  court,  and  judges 
of  the  superior  city  courts  were  fixed  at  fourteen  years. 

The  opinion  that  the  adoption  of  the  elective  system  had 
proved  a  mistake  and  that  judges  should  be  nominated  by 
the  governor  and  confirmed  by  the  senate  was  powerfully 
voiced  by  prominent  lawyers.  Matthew  Hale  asked  whether 
the  decisions  since  the  radical  and  sweeping  change  made 
by  the  Convention  of  1846  had  commanded  greater  respect 
than  the  decisions  of  James  Kent,  Ambrose  Spencer,  Sav- 
age, Sutherland,  Cowen,  and  Bronson.  He  pronounced  the 
experiment  of  the  previous  twenty  years  a  failure  in  every 
respect.  The  judges  were  perhaps  the  equals  in  learning 
and  in  natural  ability  of  their  distinguished  predecessors, 
but  the  fault  was  with  the  system.  His  opinion,  he  said, 
might  be  unpopular  in  the  convention;  nevertheless,  he  be- 
lieved that  a  great  error  had  been  committed  in  1846  in  mak- 
ing judges  elective ;  there  was  no  democracy  in  it.  If  it  were 
not  possible  to  substitute  the  appointive  method,  he  favored 
either  a  life  tenure  or  a  term  of  fourteen  years.  Joshua  M. 
V^n  Cott  declared  his  preference  for  appointment.     The 


196  CONSTITUTIONAL   HISTORY 

vice  of  the  elective  method  was  that  it  destroyed  the  inde- 
pendence of  the  judge  alter  his  election.  "If  there  ever  was 
a  system  devised  by  human  wit  to  get  a  political  man  on 
the  bench,  the  least  man,  the  least  revered  in  his  character, 
the  least  impartial,  the  most  under  influences  which  ought 
never  to  affect  the  mind  of  a  judge,  that  system  is  devised 
and  is  to  be  found  embodied  in  the  system  of  1846." 

The  Convention  of  1821,  said  Charles  P.  Daly,  unani- 
mously resolved  to  detach  the  judges  from  connection  with 
party  politics;  the  Convention  of  1846  revived  the  evil,  and 
in  a  worse  form.  This  last  convention  had,  he  said,  been 
summoned  into  being  to  remedy  the  defects  of  the  judicial 
system.  There  was  at  that  time  "a  restless  desire  for  change 
in  everything."  It  was  a  period  of  political  theories  not 
drawn  from  the  experience  and  the  teachings  of  the  past, 
but  having  their  origin  in  the  fertile  region  of  political 
speculation,  and  attractive  from  their  novelty  and  plausi- 
bility. Among  these  was  the  theory  that  public  officers  of 
every  class  should  be  elected  by  the  people  and  for  very 
short  terms,  in  order  that  they  might  be  kept  under  a  con- 
stant sense  of  their  responsibility  to  the  power  which  cre- 
ated them — a  theory  which  had  its  foundation  in  an  honest 
desire  to  secure  faithful  and  efficient  officers,  but  which  in 
its  practical  operation  had  been  attended  with  consequences 
that  could  never  have  been  imagined,  or  would  have  been 
deemed  absurdly  improbable.  In  this  unsettled,  confused, 
and  undirected  state  of  political  thought  and  action,  the 
Convention  of  1846  was  called.  Daly  forcibly  urged  adop- 
tion of  tenure  during  good  behavior,  which  had  prevailed 
until  1847.  He  had,  he  said,  carefully  re-read  the  debates 
in  the  Convention  of  1846,  and  had  discovered  that  the  elec- 
tive system  had  been  approved  by  the  convention  almost 
without  discussion,^  only  two  or  three  pages  of  the  debates 
having  been  devoted  to  this  subject. 

"See  also  article  on  judiciary  by  Dorman  B.  Eaton,  2  Lalor's 
Cyclopaedia,  644. 


STATE   OF   NEW   YORK  197 

This  view  the  debates  in  1846  do  not  fully  confirm. 
The  prevalent  sentiment  was  reflected  in  the  speeches  of 
prominent  members  of  the  convention  of  that  year.  Jordan, 
although  not  conscious,  he  said,  of  any  general  popular 
desire  for  the  election  of  judges  by  the  people,  was  willing 
to  have  the  principle  tested  to  a  limited  extent,  but  admon- 
ished the  convention  that  in  no  State  in  the  Union,  with  the 
exception  of  Mississippi,  whose  example  he  would  not  emu- 
late, were  judges  of  the  higher  courts  elected.  Swackhamer 
favored  the  elective  plan;  Perkins  also  seems  to  have  ap- 
proved it;  Ira  Harris  believed  it  an  experiment  that  might 
safely  be  tried;  Morris  took  similar  ground;  Hoffman  as- 
serted his  belief  that  all  judges  should  be  elected,  and  his 
certain  conviction  that  fully  one-half  should  be.  Murphy, 
and  even  O'Conor,  favored  election,  O'Conor  pointing  out 
that  the  existing  court  of  errors  was  composed  largely  of 
elected  members  (the  senators) ;  that  the  election  of  the 
entire  court  of  appeals  was  but  a  moderate  step  in  advance, 
and  that  since  all  the  lower  judges,  and  the  higher  judges, 
in  large  measure,  were  elective,  the  intermediate  judges — 
i.e.,  the  judges  of  the  supreme  court — also  might  be  elected 
by  popular  vote.  The  subject  of  the  judiciary  was,  accord- 
ing to  Cambreleng,  debated  for  twelve  weeks  in  committee 
and  in  convention.  But  the  question  of  election  or  appoint- 
ment was  never  brought  to  a  test  vote. 

Nevertheless,  the  elective  system  of  1846  was  in  a  sense 
a  natural  evolution.  Under  the  first  two  constitutions,  the 
court  of  errors  consisted  partly  of  appointive  and  partly  of 
elective  judges,  the  chancellor  and  the  justices  of  the  su- 
preme court  having  been  appointed  under  the  first  constitu- 
tion by  the  council  of  appointment,  and  under  the  second  by 
the  governor,  with  the  advice  and  consent  of  the  senate, 
the  lieutenant  governor  and  the  members  of  the  senate  hav- 
ing been  elected  by  popular  vote.  Justices  of  the  peace  had 
been  made  elective  in  1826.  Thus,  when  the  Convention  of 
1846  sat,  the  elected  judges  in  the  highest  appellate  tribunal 


198  CONSTITUTIONAL   HISTORY 

greatly  outnumbered  those  who  owed  their  place  to  appoint- 
ment. It  seemed  a  comparatively  simple  step  to  make  all 
the  judges  of  that  court  elective.  The  real  innovation  lay 
in  the  extension  of  the  elective  principle  to  justices  of  the 
supreme  court  and  of  the  superior  city  courts.  The  change, 
whether  wise  or  unwise,  was  an  evolution,  not  a  revolution. 
When  the  Convention  of  1867  sat,  a  revulsion  of  feeling 
had  arisen;  sentiment  had  reacted  in  favor  of  the  appointive 
method  and  a  longer  tenure  in  the  higher  courts.  Hamilton, 
in  the  Federalist,  in  eulogizing  the  system  of  appointing 
Federal  judges  during  good  behavior,  had  declared  that 
nothing  could  ''contribute  so  much  to  the  firmness  and  in- 
dependence of  the  judiciary  as  permanency  in  office."  In 
the  Convention  of  1867  Evarts  expanded  the  argument  and 
developed  the  philosophical  principles  upon  which  it  rests. 
Evarts,  while  a  friend  to  the  appointive  system,  in  brilliant 
and  conclusive  fashion  put  the  stress  of  his  argument  upon 
the  proposition  that  a  judge  once  seated  in  office  should  be 
absolutely  independent  of  the  appointing  power,  whatever 
that  power  might  be.  By  fixing  the  age  limit  at  seventy 
years,  the  term  of  office  would  not  extend  beyond  the  con- 
tinuance of  the  powers  of  mind  and  body  requisite  for  the 
performance  of  judicial  duty.  Establishing  that  as  the 
term,  "we  then  give  to  the  incumbent  the  security,  and  to 
the  public  the  advantage,  of  the  continuance  in  office  of  a 
judge  during  that  period."  The  debate,  he  said,  had  shown 
a  remarkable  unanimity  of  opinion  as  to  what  the  public 
interests  require,  in  the  establishment  and  constitution  of 
the  courts.  ''The  judiciary  is  the  representative  of  the  jus- 
tice of  the  State,  and  not  of  its  power.  *  *  *  The 
judge  is  not  to  declare  the  will  of  the  sovereignty,  whether 
that  sovereignty  reside  in  a  crowned  king,  in  an  aristocracy, 
or  in  the  unnumbered  and  unnamed  mass  of  the  people. 
*  *  *  Justice  is  of  universal  import,  of  universal  ne- 
cessity under  whatever  form  of  society."  This  being  the 
main  policy  of  human  society,  as  Burke  had  affirmed,  every 


STATE   OF   NEW   YORK  199 

society  that  fails  to  do  justice  stands  self -condemned.  "The 
judges  declare  the  law,  they  do  not  impose  it.  It  is  the  law 
of  the  land  they  are  to  declare,  not  the  will  of  any  power  in 
the  land."  The  proper  discharge  of  this  high  duty  neces- 
sarily falls  upon  men  like  ourselves,  but  to  insure  the  choice 
of  men  who  will  independently  declare  the  law,  it  is  essen- 
tial that  the  judge  should  be  exempt  from  accountability 
for  his  judicial  action.  No  action  lies  against  him  for  any- 
thing that  he  does  in  the  judicial  office.  The  procedure  of 
impeachment  is  the  only  means  of  correcting  judicial  mal- 
conduct.  But  to  perform  his  duty  with  absolute  independ- 
ence it  is  necessary  that  the  judge  shall  hold  his  office  during 
the  pleasure  of  no  representative  of  power.  Although  these 
truths  were  unquestionable,  they  had  almost  entirely  been 
ignored  in  the  plan  adopted  by  the  Convention  of  1846  of 
electing  judges  for  short  terms  of  office.  "In  the  principle 
of  short  terms  and  recurring  elections  is  included  both  the 
element  of  accountability  for  judicial  action  to  all  persons 
whose  displeasure  it  has  provoked,  and  of  holding  during 
pleasure."  This  was  no  mere  dogma,  for  experience  had 
shown  that  in  short  terms  and  recurring  elections  there  was 
this  pernicious  vice  of  holding  during  pleasure.  "When 
Chief  Justice  Bosworth  made  certain  decisions  against  a 
great  political  character,  that  great  political  character's 
memory  lasted  till  the  recurring  election  brought  around  the 
nomination  in  his  own  party.  Chief  Justice  Bosworth  was 
succeeded  by  Judge  McCunn,  because  such  was  the  royal 
pleasure  of  that  political  character."  Recent  events  have 
matched  this  case  with  another,  for  a  few  years  ago  in 
New  York  City,  a  judge  who  had  refused  to  appoint  ref- 
erees at  the  dictate  of  a  political  boss  was  denied  renomina- 
tion  because  of  his  recusancy. 

"Public  office,"  continued  Evarts,  "is  for  the  public  serv- 
ice, and  not  for  the  private  advantage  of  the  incumbent," 
although  "no  people  had  departed  more  widely  from  this 
fundamental  theory  in  the  practice  of  politics  than  we." 


20O  CONSTITUTIONAL   HISTORY 

He  had,  he  said,  "a  very  clear,  a  very  thorough,  and  a  very 
earnest  conviction  that  the  experience  both  of  England  and 
of  this  country  in  the  past,  and  of  this  State  in  the  past, 
showed  that  courts  built  upon  the  plan  of  a  judicial  tenure 
during  good  behavior,  up  to  a  period  of  age  designated, 
give  the  best  judges."  The  judge  was,  of  course,  to  be 
taken  from  the  bar,  and  (how  refreshing  and  stimulating 
the  doctrine!)   ''he  is  to  have  learning,  integrity,  industry 

*  *  *  every  quality  of  mind  and  heart,  and  every  ad- 
vantage of  health  and  strength."  Forty  or  forty-five  years 
was  the  age  at  which  the  State  might  wisely  ask  the  man 
to  enter  its  service  as  judge.  But  he  may  expect  at  the  bar 
an  honorable  and  useful  career  for  life.  "You  offer  him 
half  a  life  of  judicial  service  in  exchange  for  a  whole  life  of 
professional  service  and  duty  to  the  community."  Or,  "will 
you  postpone  your  proposition  until  he  reaches  the  age  of 
fifty-six,  when  he  can  take  your  fourteen  years'  tenure,  and 
expect  to  serve  out  his  career?"  It  was  Evarts's  belief  that 
the  people  of  the  State  expected  the  convention  to  revise 
the  judiciary  article  completely.  In  exposing  the  fallacy 
that  in  proposing  a  judicial  tenure  during  good  behavior,  the 
convention  might  be  making  a  constitution  better  than  the 
people  desired,  he  said  (and  his  words  should  indelibly  be 
inscribed  in  the  mind  of  every  one  who  may  be  called  upon 
to  act  in  a  similar  capacity)  :  "What  is  the  trust  reposed 
in  us?  It  is  the  trust  of  framing  a  constitution  such  as  we, 
upon  our  oaths,  think  best  for  the  people.  *  *  *  jf 
this  convention  does  not  frame  these  clauses  according  to 
its  conscience  and  its  wisdom,  it  frames  them  according  to 
an  unrepresented  conscience  and  wisdom  that  is  not  here. 

*  *  *  No  man  has  the  right  to  say  what  sort  of  con- 
stitution the  people  want,  except  this  convention,  made  up 
of  delegates  chosen  for  the  purpose." 

The  convention  voted  three  times  on  a  motion  to  recom- 
mend judicial  tenure  to  continue  during  good  behavior,  or 
until  seventy.     On  the  first  vote,  the  motion  was  rejected, 


STATE   OF    NEW    YORK  201 

43  to  48 ;  on  the  second,  56  to  58 ;  and  on  the  third,  which 
took  place  in  the  closing  days  of  the  convention,  by  45  to  51. 
The  convention  seems  to  have  been  almost  evenly  divided  on 
each  vote,  with  only  a  slight  majority  against  the  commit- 
tee's recommendation.  It  modified  the  proposal  of  the 
judiciary  committee  to  submit  the  question  of  appointment 
or  election  of  judges  in  1870,  and  resolved  instead  that  at  the 
general  election  in  the  year  1873,  a  date  sufficiently  removed 
to  allow  arguments  for  and  against  the  proposed  changes  to 
be  presented  to  voters,  these  questions  should  be  submitted 
upon  separate  ballots  :  "(i)  Shall  the  offices  of  chief  judge 
and  associate  judge  of  the  court  of  appeals  and  of  justices 
of  the  supreme  court  be  hereafter  filled  by  appointment,  and 
(2)  shall  the  offices  of  the  judges  mentioned  in  sections  12 
and  13  of  article  VI  of  the  constitution  [judges  of  the  su- 
perior courts  and  of  the  county  courts]  be  hereafter  filled 
by  appointment?"  The  resolution  for  submission  of  these 
questions  was  not  carried  without  considerable  dissent,  for 
to  many  delegates  it  seemed  inconsistent  that  the  conven- 
tion, after  framing  a  judiciary  article  with  an  elective  sys- 
tem which  the  people  were  asked  to  ratify,  should  ask 
the  people  to  vote  three  years  later  upon  the  question 
whether  they  would  return  to  the  appointive  method,  and 
to  that  extent  reject  the  plan  of  their  new  constitution.  At 
the  election  of  1873,  the  vote  to  continue  to  elect  judges  of 
the  court  of  appeals  and  of  the  supreme  court  was  319,979 
in  favor,  to  115,337  against.  For  the  election  of  county 
judges  and  judges  of  the  superior  courts  the  vote  was 
319,660;  for  their  appointment,  110,725.  The  satisfaction 
which  the  newly  reconstituted  tribunals  had  given  in  the 
interval  of  three  years  undoubtedly  contributed  to  this  de- 
cisive approval  of  the  elective  system. 

To  dispose  of  the  unfinished  causes  on  the  calendar  of 
the  retiring  court  of  appeals,  the  convention  created  a  com- 
mission consisting  of  the  four  judges  of  the  old  court,  and 
a  fifth  commissioner  to  be  appointed  by  the  governor  and 


202  CONSTITUTIONAL   HISTORY 

confirmed  by  the  senate.  The  judiciary  article  continued 
the  existing  county  courts,  the  judges  thereof  in  office  at 
the  time  of  its  adoption  to  hold  their  offices  until  the  ex- 
piration of  their  respective  terms.  It  further  declared  that 
their  successors  should  be  chosen  by  the  electors  of  the 
counties  for  terms  of  six  years,  and  that  until  altered  by  the 
legislature  the  county  courts  should  have  the  powers  and 
jurisdiction  theretofore  possessed.  The  constitution  of 
1847  had  made  the  surrogates'  courts  constitutional  tribu- 
nals. The  judiciary  article  of  1869  continued  them  as  such. 
For  the  relief  of  surrogates'  courts  it  authorized  the  legis- 
lature to  confer  upon  courts  of  record  in  any  county  having 
a  population  exceeding  400,000  the  powers  and  jurisdiction 
of  surrogates,  with  authority  to  try  issues  of  fact  by  jury 
in  probate  causes. 

The  judiciary  article  was  submitted  separately  from  the 
other  work  of  the  convention,  and  was  ratified  at  the  gen- 
eral election  in  November,  1869,  the  vote  being  247,240  in 
its  favor,  to  240,442  against  it — a  vote  corresponding  fairly 
with  the  differences  throughout  the  State  upon  political 
questions.  But  the  ratification  of  the  article  at  an  election 
at  which  the  remainder  of  the  work  of  the  convention  was 
disapproved  by  a  vote  of  290,456  to  223,935,  and  in  which 
the  Democratic  party  won  every  department  of  the  State 
government,  is  gratifying  evidence  how  admirably  the  con- 
vention in  its  reconstitution  of  the  judicial  system  had  met 
public  expectation. 

In  the  following  winter  the  legislature  passed  an  act  for 
the  election  on  May  17,  1870,  of  judges  of  the  new  court  of 
appeals.  The  election  was  on  the  basis  of  minority  represen- 
tation, an  express  requirement  of  the  judiciary  article  be- 
ing that  at  the  first  election  of  judges  every  elector  might 
vote  for  the  chief  judge  and  only  four  of  the  associate 
judges.  The  members  of  the  tribunal  chosen  at  this  elec- 
tion were  Sanford  E.  Church,  chief  judge;  William  F. 
Allen,  Rufus  W.  Peckham,  Martin  Grover,  Charles  J.  Fol- 


STATE   OF   NEW   YORK  203 

ger,  Charles  A.  Rapallo,  and  Charles  Andrews,  associate 
judges.  The  chief  judge  and  two  of  the  associate  judges 
(Folger  and  Andrews)  had  been  among  the  most  influential 
members  of  the  convention.  The  judges  assumed  their 
office  on  the  first  Monday  of  July,  1870. 

The  new  court  of  appeals  was  formally  organized  in- 
the  senate  chamber,  July  4,  1870,  exactly  twenty-three  years 
after  the  old  court  began  its  labors.  In  an  address  to  the 
court  on  behalf  of  the  bar,  it  was  aptly  said  that  from  the 
commencement  of  the  State  government  the  courts  of  final 
resort  had  been  filled  by  men  of  unquestioned  integrity 
whose  opinions  had  commanded  the  respect  of  the  world, 
and  were  cited  at  Westminster  Hall  and  in  all  the  States 
of  the  Union.  Church,  the  new  chief  judge,  had  no 
previous  judicial  experience.  He  had  been  prominent  in 
the  politics  of  the  State  for  many  years,  having  entered  the 
assembly  in  1841,  and  was  one  of  the  original  "Barn- 
burners." As  was  said  by  his  associate,  Folger,  upon  his 
death,  *'he  went  through  many  stirring  canvasses  and  many 
times  of  strong  temptation;  but  when  party  strife  was  hot- 
test, and  aspersions  were  the  usual  utterances  of  partisans, 
not  a  breath  that  he  was  not  upright  ever  settled  on  the 
mirror  of  his  fame."  '^  Allen  had  been  a  member  of  the 
assembly  from  Oswego  county  in  1843-4,  then  attorney  for 
the  United  States  for  the  northern  district  of  New  York, 
and  subsequently  was  elected  justice  of  the  supreme  court 
for  the  fifth  district.  From  the  position  of  State  comp- 
troller he  was  called  to  the  place  of  associate  judge  of  the 
highest  tribunal.  Rufus  W.  Peckham  had  for  many  years 
been  identified  with  the  judiciary  of  the  State,  having  begun 
his  judicial  life  as  a  justice  of  the  supreme  court.  He  was 
a  member  of  Congress  when  the  Missouri  Compromise  was 
abrogated,  and  was  one  of  the  Democrats  who  voted  against 
its  repeal.     His  death  was  the  first  breach  in  the  member- 


'77  N.  Y.,  635. 


204  CONSTITUTIONAL   HISTORY 

ship  of  the  original  court.  This  tragic  event  occurred  on 
November  22,  1873,  when  the  Ville  du  Havre  sank  in  mid- 
ocean.  Martin  J.  Grover  had  been  upon  the  bench  from 
November,  1857,  when  he  was  first  elected  to  the  supreme 
court  in  the  eighth  judicial  district.  In  power  of  observa- 
tion, faculty  of  description,  in  quaintness  of  expression  and 
quickness  of  humor,  he  was  not  unlike  Abraham  Lincoln. 
Folger  had  never  had  earlier  judicial  experience.  In  1880 
he  was  promoted  to  the  chief  judgeship  of  the  court,  upon 
Church's  death,  defeating  Rapallo  for  the  office,  and  was 
himself  to  suffer  humiliating  defeat  irt  his  aspirations  for 
the  governorship  in  1882.  Rapallo,  perhaps  the  greatest 
jurist  in  a  company  of  remarkable  men,  will  long  be  remem- 
bered for  the  splendid  opinions  with  which  he  has  enriched 
the  law.  Charles  Andrews,  who  with  Church  and  Folger 
had  been  a  member  of  the  Convention  of  1867,  is  the  sole 
survivor  of  the  famous  tribunal.  For  a  short  time  Judge 
Andrews  held  the  place  of  chief  judge,  by  appointment  after 
Church's  decease. 


STATE   OF   NEW   YORK  205 


CHAPTER    XI 

FAILURE  OF  THE  CONVENTION'S  WORK  OTHER  THAN  ITS  JU- 
DICIARY ARTICLE CAUSES  OF  FAILURE,  POLITICAL  PAS- 
SIONS OF  THE  TIME REPORTS  OF  COMMITTEE  ON  SUF- 
FRAGE  NEGRO     SUFFRAGE SEPARATE     SUBMISSION     OF 

QUESTION     WHETHER     PROPERTY     QUALIFICATIONS     FOR 

COLORED  VOTERS  SHOULD  BE  RETAINED  OR  ABANDONED 

VOTE     UPON     THE     SUBJECT WOMAN     SUFFRAGE,     AND 

SPEECH  OF  GEORGE  WILLIAM  CURTIS MINORITY  REPRE- 
SENTATION  REACTION     FROM     DECENTRALIZING    SPIRIT 

OF      1846 CONVENTION     FAVORS     LARGER     SENATORIAL 

DISTRICTS  AND  COUNTY  REPRESENTATION  IN  THE  AS- 
SEMBLY  DEBATE  UPON  THE  REPORT  OF  THE  COM- 
MITTEE ON  STATE  AFFAIRS ARGUMENTS  FOR  ESTABLISH- 
MENT OF  CABINET  OF  STATE  OFFICERS  AND  THE  NOMINA- 
TION OF  SUCH  OFFICERS  BY  THE  GOVERNOR GOVERNOR'S 

POWER  OVER  BILLS  AFTER  CLOSE  OF  SESSION EXTENSION 

OF  VETO  POWER MUNICIPAL  GOVERNMENT CONVEN- 
TION'S REPORT  DRAFTED  BY  JUDGE  FOLGER ADJOURN- 
MENT OF  THE  SESSIONS  OF  THE  CONVENTION,  AND  EF- 
FECT  VOTE  UPON  convention's  WORK. 

The  Convention  of  1867  suffered  the  singular  fate  of 
having  all  of  its  work  except  its  judiciary  article  rejected 
by  the  people.  All  the  proposals  of  the  Conventions  of 
1 82 1,  1846,  and,  as  we  shall  see  hereafter,  1894,  were  rati- 
fied at  the  polls.  Inasmuch  as  the  personnel  of  the  Con- 
vention of  1867  was  of  a  high  order,  explanation  must  be 
found  to  account  for  this  defeat.  Some  of  its  suggestions 
were  favorably  reported  by  the  constitutional  commission 


2o6  CONSTITUTIONAL   HISTORY 

which  sat  in  1872,  and  were  accepted  by  the  people  in  the 
fall  of  1874.  The  rejection  of  most  of  its  work  is  due  to 
the  fact  that  it  sat,  and  its  results  were  submitted,  at  an 
inopportune  time.  It  was  called  in  an  exciting  political  era. 
President  Lincoln's  assassination,  the  unexpected  policy  of 
his  successor,  the  unwise  reactionary  legislation  adopted  in 
some  southern  States  in  the  winter  of  1865-66,  the  recon- 
struction measures  of  Congress,  President  Johnson's  oppo- 
sition, and  wide  differences  of  opinion  as  to  negro  suffrage, 
roused  great  intensity  of  party  feeling,  and  the  convention, 
which  was  preponderatingly  Republican,  became  the  subject 
of  hostile  criticism.  The  passions  of  the  time  were  reflected 
in  a  degree  in  the  debates  in  this  body.  Its  refusal  to  de- 
part from  the  conservative  policy  regarding  negro  suffrage 
adopted  in  1821  and  followed  in  1846,  led  political  oppo- 
nents to  taunt  the  Republicans  with  inconsistency  and  cow- 
ardice. It  was  charged  that  for  partisan  advantage  they 
were  giving  a  free  ballot  to  the  poor  and  uneducated  negro 
of  the  south,  while  not  daring  to  enfranchise  the  colored 
voter  in  New  York.  Reaction  from  the  extreme  decentral- 
ization of  1846,  and  comparative  distrust  of  popular  elec- 
tions as  the  antidote  for  political  evils,  had  become  manifest. 
In  England,  government  was  on  the  point  of  widening  the 
circle  of  parliamentary  voters,  and  the  wisdom  of  limiting 
the  suffrage  by  educational  or  property  tests  was  critically 
discussed.  Educational  or  economic  requirements  had  been 
adopted  in  several  States  of  the  Union.  John  Stuart  Mill,  in 
his  ''Representative  Government"  and  his  ''Subjection  of 
Women,"  had  cogently  presented  the  claims  of  women  to 
vote.  The  first  women's  rights  convention  in  this  State  was 
held  at  Seneca  Falls,  July  19,  1848,  and  the  first  national 
convention  to  urge  the  claims  of  the  sex  to  the  suffrage  as- 
sembled at  Worcester,  Massachusetts,  October  23,  1850. 
Concurrently  the  subject  had  been  treated  with  ability  in 
the  Westminster  Review,  and  agitation  in  its  favor  was 
earnestly  maintained  down  to  1870.     Minority  or  propor- 


STATE   OF   NEW   YORK  207 

tional  representation,  one  of  whose  first  and  most  forcible 
exponents  was  Thomas  Hare,  was  quite  naturally  cast 
into  the  crucible  of  debate.  Problems  of  city  government 
that  had  been  kept  in  the  background  by  the  grave  issues 
of  civil  war  and  reconstruction  were  looming  into  promi- 
nence. Governor  Fenton,  in  his  message  to  the  legislature 
in  1867,  declared  that  the  large  vote  in  favor  of  a  conven- 
tion was  proof  that  the  people  believed  some  modification 
of  the  organic  law  to  be  essential  to  the  general  welfare. 
Reform,  as  the  governor  said,  was  needed  in  the  judicial 
system,  especially  in  the  structure  of  the  court  of  appeals; 
yet  he  somewhat  paradoxically  added  that  notwithstanding 
its  defects,  the  constitution  was  an  admirable  instrument,  as 
was  shown  in  1858  by  the  refusal  of  the  people  to  call  a 
convention. 

The  judiciary  article  has  heretofore  been  considered.  It 
is  the  unaccepted  work  of  the  convention  which  is  here 
treated.  Debate  took  a  wide  range,  but  the  chief  topics  of 
discussion  were  the  right  of  colored  citizens  to  vote  on  equal 
terms  with  white  men,  woman  suffrage,  minority  represen- 
tation, the  appointment  instead  of  the  election  of  judges, 
district  attorneys  and  State  officers,  special  legislation,  the 
governor's  veto  power,  bribery,  education,  intemperance, 
canals.  State  police,  official  corruption,  emancipation  of 
cities. 

Two  reports  came  from  the  committee  on  suffrage,  of 
which  Horace  Greeley  was  chairman,  the  majority  report 
proposing  that  the  qualifications  of  a  legal  voter  should  be 
adult,  rational  manhood;  citizenship  in  the  United  States  of 
not  less  than  thirty  days  standing,  and  residence  in  the 
State  for  one  year,  and  in  the  election  district  for  thirty 
days;  freedom  from  crime,  and  exemption  from  depend- 
ence upon  others  through  pauperism  or  guardianship.  All 
discriminations  based  upon  color  were  eliminated,  for,  said 
the  report,  men  should  be  dealt  with  according  to  their  con- 
duct, without  regard  to  color.    The  committee  refused  to 


2o8  CONSTITUTIONAL   HISTORY 

recommend  extension  of  the  elective  franchise  to  women. 
"Public  sentiment  did  not  demand  and  would  not  sustain 
an  innovation  so  revolutionary  and  sweeping,  so  openly  at 
war  with  the  distribution  of  duties  and  functions  between 
the  sexes,  as  venerable  and  pervading  as  government  itself, 
and  involving  transformation  so  radical  in  social  and  do- 
mestic life."  The  committee  would  not  impose  a  property 
qualification  or  extend  the  franchise  to  lads  of  eighteen 
years.  Manhood  suffrage  for  white  voters  had,  it  asserted, 
been  adopted  by  the  legislature  of  1825  and  ratified  by  an 
overwhelmingly  popular  vote  in  1826 — yeas  127,077,  nays 
3,215;  and  *Ve,"  said  the  report,  "do  not  feel  called  upon 
to  appeal  from  this  judgment."  Two  of  the  committee 
dissented  from  the  majority,  mainly  because  they  desired 
the  separate  submission  to  the  people  of"  the  question 
whether  the  elective  franchise  should  freely  be  accorded  to 
colored  men.  Discussion  upon  this  topic  could  not  easily  be 
limited,  and  before  it  was  at  end  it  involved  the  whole  sub- 
ject of  racial  differences  and  the  fitness  of  the  African  for 
the  ballot.  Just  as  the  fact  that  the  disfranchised  white 
yeomanry  of  the  State  had  been  called  to  the  defence  of 
the  Union  in  18 12  was  urged  as  a  reason  for  extension  of 
the  suffrage  to  them  in  1821,  so,  in  1867,  the  fact  that  col- 
ored citizens  had,  like  their  white  brethren,  taken  up  arms 
in  the  nation's  cause  and  shed  their  blood  in  its  service, 
was  eloquently  advanced  as  ground  for  the  removal  of  all 
differences  respecting  white  and  negro  suffrage  in  the  State. 
The  convention  decided  to  submit  the  question  separately 
to  the  people  at  the  fall  election  of  1869,  when  a  majority 
of  those  voting  upon  it  were  found  to  favor  the  retention 
of  the  existing  property  qualifications  for  colored  voters — 
249,802  persons  voted  in  favor  of  the  abrogation  of  these 
qualifications,  282,403  for  their  preservation.  The  figures 
show  an  advance  in  public  sentiment  in  the  course  of  two 
decades;  the  vote  in  1826  to  remove  the  property  test  for 
negroes  was  85,306  in  its  favor  to  223,834  against  it.    In 


STATE    OF    NEW    YORK  209 

i860  the  vote  in  favor  was  197,503  to  337,984  against;  in 
1869  the  vote  indicated  that  pubHc  sentiment  was  quite 
evenly  divided.  The  old  restrictions  on  colored  voters  there- 
fore continued  in  force  until  they  were  overridden  by  the 
adoption  of  the  Fifteenth  Amendment  to  the  National  Con- 
stitution. Had  it  been  left  with  the  convention  to  decide 
whether  the  color  line  should  be  erased  and  manhood  suf- 
frage established,  its  vote  would  have  determined  the  mat- 
ter favorably.  The  vote  in  the  convention  against  Murphy's 
amendment  to  continue  the  old  restrictions  upon  colored 
suffrage  was  78  to  29. 

The  committee  on  suffrage  declined  to  recommend  an 
educational  qualification.  It  declined  to  recommend  woman 
suffrage  or  permit  submission  to  the  people  of  the  question 
whether  women  should  be  allowed  to  vote.  Although  opin- 
ion in  the  convention  was  decidedly  against  giving  women 
the  ballot,  they  could  not  have  had  a  more  able  or  brilliant 
champion  than  George  William  Curtis.  Curtis  never  spoke 
more  eloquently  or  forcibly,  and  if  oratory  could  have  as- 
sured success,  the  vote  would  have  been  overwhelming  in 
woman's  favor.  His  speech  deserves  to  be  rescued  from 
the  oblivion  in  which  it  is  buried  in  the  convention  debates. 
The  measure  which,  said  Curtis,  the  report  of  the  commit- 
tee on  suffrage  had  declared  to  be  radically  revolutionary 
and  perilous  to  the  very  functions  of  sex  was,  according  to 
the  most  sagacious  of  political  philosophers,  John  Stuart 
Mill,  "reasonable,  conservative,  necessary,  and  inevitable." 
Mill  had  obtained  for  it  seventy-three  votes  "in  the  same 
house  in  which  out  of  about  the  same  whole  number  of 
voters  Charles  James  Fox,  the  idol  of  the  British  Whigs, 
used  to  be  able  to  rally  only  forty  votes  against  the  policy 
of  Pitt.  The  dawn  in  England  will  soon  be  day  here.  Be- 
fore the  American  principle  of  equal  rights,  barrier  after 
barrier  in  the  path  of  human  progress  falls.  H  we  are 
still  far  from  its  full  comprehension  and  further  from  per- 
fect conformity  to  its  law,  it  is  in  that  only  like  the  spirit  of 


210  CONSTITUTIONAL   HISTORY 

Christianity  to  whose  full  glory  even  Christendom  but  slow- 
ly approaches.  From  the  heat  and  tumult  of  our  politics  we 
can  still  lift  our  eyes  to  the  eternal  light  of  that  principle; 
can  see  that  the  usurpation  of  sex  is  the  last  form  of  caste 
that  lingers  in  our  society ;  that  in  America  the  most  humane 
thinker  is  the  most  sagacious  statesman." 

The  Curtis  amendment  was  supported  by  a  few  con- 
spicuous leaders  in  the  convention,  but  there  was  an  over- 
whelming sentiment  in  opposition.  It  secured  only  19  votes, 
125  being  cast  against  it.  The  proposal  advanced  by  Graves 
that  the  matter  of  woman  suffrage  should  be  determined  by 
a  vote  of  women  only  at  a  special  election,  had  even  less 
support,  for  it  was  negatived,  133  to  9.  Little,  if  any,  con- 
sideration seems  to  have  been  paid  in  the  Convention  of 
1894  to  the  movement  to  give  the  franchise  to  woman. ^ 

In  the  refusal  of  the  committee  on  suffrage  to  recom- 
mend an  educational  qualification,  the  convention  evidently 
concurred.  Hale,  one  of  the  strongest  advocates  of  minor- 
ity representation,  called  attention  to  the  fact  that  to  the 
legislation  under  which  they  were  assembled  (which  had 
permitted  each  voter  to  vote  for  only  16  of  the  delegates-at- 
large)  was  to  be  attributed  the  presence  of  some  of  the 
master  spirits  in  the  convention — Evarts,  chairman  of  the 
Committee  on  Preamble  and  Bill  of  Rights ;  Greeley,  chair- 
man of  the  Committee  on  the  Right  of  Suffrage;  Church, 
chairman  of  the  Finance  Committee;  Harris,  chairman  of 
the  Committee  on  Cities;  and  Curtis,  the  eloquent  and  ac- 
complished chairman  of  the  Committee  on  Education.  But 
minority  representation  was  not  popular,  and  the  conven- 
tion applied  it  only  in  respect  to  the  associate  judges  of  the 
new  court  of  appeals  to  be  chosen  at  the  first  election. 

Although  in  1821  freeholders  alone  voted  for  senators 
and  governor,  and  a  property  qualification  restricted  the 


.  *It  has  received  such  impetus  within  a  year  that  it  will  probably 
be  submitted  to  the  voters  of  the  State  in  November,  1915,  for  their 
approval  or  disapproval 


STATE   OF   NEW   YORK  211 

vote  for  assemblymen,  the  legislature  of  that  year  in  sub- 
mitting to  the  people  the  question  whether  a  convention 
should  be  called,  had,  as  we  have  seen,  made  all  persons 
who  paid  taxes  or  worked  upon  the  highways  eligible  to  vote, 
and  to  be  delegates.  The  Convention  of  1821  adopted  the 
test  for  electors  that  the  legislature  had  enacted  for  dele- 
gates, and  the  constitution  was  submitted  to  this  larger  elec- 
torate— a  circumstance  essential  to  its  ratification.  In  1846 
the  legislature  prescribed  that  persons  qualified  to  vote  for 
assemblymen  should  be  qualified  to  vote  for  delegates  to  the 
convention  held  that  year.  In  1867  and  also  in  1894  every 
person  could  vote  for  delegates  who  was  entitled  to  vote  for 
an  assemblyman.  The  Convention  of  1867  decided  that  the 
qualifications  of  electors  of  constitutional  delegates  should 
be  settled  in  the  constitution  itself,  and  therefore,  in  defining 
the  qualifications  of  voters,  it  provided  that  every  elector 
might  vote  not  only  for  all  officers  chosen  by  the  people,  but 
upon  all  questions  that  might  be  submitted  to  the  vote  of 
the  people  of  the  State.  This  provision  was  incorporated  in 
the  constitution  in  1894. 

In  some  respects  the  Convention  of  1867  exhibited  a 
marked  reaction  from  the  decentralizing  spirit  which  had 
animated  the  Convention  of  1846.  In  its  proposal  to  en- 
large the  senatorial  district  and  the  senatorial  term,  to  re- 
store county  representation  in  the  assembly,  to  lengthen  ju- 
dicial tenure,  elect  the  entire  court  of  appeals  upon  a  general 
ticket,  and  appoint  State  officers  and  district  attorneys,  the 
centralizing  tendency  was  marked.  Upon  the  other  hand, 
its  proposal  to  confer  increased  legislative  functions  upon 
county  boards  of  supervisors  was  a  move  in  the  line  of  de- 
centralization and  in  accordance  with  the  doctrine  of  home 
rule. 

When  the  Convention  of  1846  determined  to  break  up 
the  State  into  thirty-two  senate  districts,  it  did  so  in  obedi- 
ence to  the  demand  of  localities  for  separate  representation 
in  each  house.    It  was  then  seriously  argued  that  under  the 


212  CONSTITUTIONAL   HISTORY 

constitution  of  1822  candidates  had  been  chosen  to  the 
senate  for  whom  voters  never  intended  to  cast  their  ballots. 
One  illustration  frequently  pressed  into  service  related  to  a 
youthful  candidate  for  senatorial  honor,  who  was  elected 
because  some  of  his  constituents  in  a  distant  part  of  his 
district  had  cast  their  suffrages  for  him  in  the  belief  that 
he  was  another  and  maturer  person  of  the  same  name. 
With  the  development  of  increased  facilities  for  the  dis- 
semination of  news,  such  mistakes,  if  they  ever  occurred, 
were  rendered  well-nigh  impossible.  Und^r  the  system  pre- 
vailing between  1822  and  1847,  with  the  State  subdivided 
into  a  small  number  of  districts,  men  of  great  ability  were 
chosen  to  the  senate.  Comparison  of  the  lists  of  two  or 
three  generations  ago  with  those  of  recent  times  shows  a 
marked  decline  in  the  intellectual  character  of  the  upper 
house.  Formerly  men  of  the  stamp  of  DeWitt  Clinton, 
Ambrose  Spencer,  Martin  Van  Buren,  William  H.  Seward, 
Silas  Wright,  Samuel  Young,  Samuel  Beardsley,  Alonzo  C. 
Paige  sat  in  the  senate;  but  to-day  their  peers  are  rarely 
chosen  to  the  same  office.  So  pronounced  had  the  decline 
become  even  in  1867  that  many  delegates  to  the  convention 
of  that  year  urged  return  to  the  small  number  of  districts 
established  in  1822.  Among  the  leaders  in  this  effort  were 
Evarts,  Andrews,  Harris,  Folger,  Van  Cott,  and  Professor 
Dwight.  Small  districts,  they  contended,  were  no  more 
entitled  to  separate  representation  in  the  upper  house  than 
were  counties.  Large  districts  would  render  the  senatorial 
office  more  important.  This  would  tend  to  attract  a  higher 
type  of  candidates,  and  to  banish,  at  least  from  the  upper 
chamber,  the  spirit  of  local  jealousies  and  of  log-rolling  so 
potent  in  securing  local  legislation. 

Professor  Dwight,  in  a  philosophical  argument,  showed 
that  the  only  justification  for  a  bicameral  legislature  was  in 
having  the  two  houses  represent  entirely  different  constitu- 
encies and  not  reflect  alike  the  passions  of  the  people.  Gen- 
eral laws,  he  said,  were  comparatively  few  in  number,  and 


STATE    OF    NEW    YORK  213 

since  a  senate  elected  from  large  districts  would  be  more 
occupied  with  matters  of  great  import  than  a  senate  repre- 
senting smaller  districts  with  their  local  requirements,  the 
volume  of  legislation  should  be  correspondingly  less.  He 
did  not  believe  it  possible  to  prevent  special  legislation ;  but 
if  it  could  be  done,  ''what  would  be  the  next  step?  Suppose 
we  had  only  general  laws,  then  the  effort  of  an  unscrupulous 
lobby  would  be  to  obtain  special  legislation  under  the  guise 
of  general  laws.^  If  a  man  has  a  special  provision  which  he 
wishes  to  have  applied  to  a  corporation  in  which  he  is  in- 
terested, he  will  seek  to  alter  the  general  law  of  corpora- 
tions; if  he  wishes  to  release  himself  from  a  hated  mar- 
riage tie,  he  will  seek  to  alter  the  general  law  of  divorce." 
Corruption  could  not  be  stopped  by  piety  or  philosophy. 
There  should  be  men  of  the  right  character  in  the  legisla- 
ture; their  election  would  be  best  assured  with  large  dis- 
tricts. 

To  exalt  the  dignity  of  the  senatorial  office,  it  was  pro- 
posed also  to  make  the  term  four  instead  of  two  years,  va- 
cating one  seat  in  each  district  every  year,  thus  ensuring 
the  choice  of  one-fourth  of  the  senate  at  each  annual  elec- 
tion. The  constitution  proposed  by  the  convention  retained 
the  thirty-two  senate  districts,  but  lengthened  the  senatorial 
term  to  four  years.  The  first  senators  elected  in  odd-num- 
bered districts  were  to  vacate  their  offices  at  the  end  of  two 
years,  those  in  districts  bearing  even  numbers  at  the  end  of 
four  years,  thus  securing  the  election  of  one-half  of  the 
senate  every  second  year. 

When  the  subject  of  assembly  representation  came  up 
for  debate,  a  majority  of  the  delegates  voted  to  return  to 
county  representation  as  fixed  by  the  constitution  of  1821. 


'The  convention  so  fully  appreciated  the  evils  of  special  legisla- 
tion that  it  proposed  to  forbid  the  legislature  from  chartering  any  kind 
of  stock  corporation  under  special  laws,  and  it  proposed  also  to  prevent 
the  consolidation  of  railroad  corporations  owning  parallel  or  competing 
lines  of  roads. 


214  CONSTITUTIONAL   HISTORY 

The  constitution  of  1777  had  provided  for  the  election  of 
assemblymen  by  counties,  but  it  made  the  size  of  the  as- 
sembly dependent  upon  the  growth  of  population,  fixing 
the  minimum  membership  at  seventy  and  the  maximum  at 
three  hundred.  In  1801  the  assembly  was  limited  to  one 
hundred  members.  In  1822  it  was  fixed  at  128,  the  unit 
being  the  county.  In  1846  a  new  unit  of  representation  was 
adopted — the  assembly  district.  Members  of  assembly  were 
apportioned  among  the  counties  by  the  legislature,  upon  the 
basis  of  population,  excluding  aliens,  and  chosen  in  single- 
districts,  every  county  except  Hamilton  being  entitled  to  one 
member — no  new  county  to  be  erected  unless  its  popu- 
lation should  entitle  it  to  a  member.  The  clamor  of  small 
districts  for  separate  representation,  and  the  reluctance  of 
the  least  populous  counties  to  risk  loss  of  such  representa- 
tion with  the  growth  of  other  parts  of  the  State  in  popula- 
tion probably  compelled  the  adoption  of  this  complicated 
system.  Its  chief  defect  was  the  impossibility  of  giving  all 
districts  equitable  representation  so  long  as  county  repre- 
sentation was  adhered  to  and  the  assembly  remained  at  a 
fixed  number.  County  representation,  it  was  cogently 
argued,  would  bring  into  the  lower  house  a  superior  class 
of  representatives  corresponding  to  the  better  class  to  be 
obtained  in  the  senate  from  large  districts.  A  proposal  to 
substitute  the  county  for  the  assembly  district  as  the  unit  of 
representation  was  carried  in  1867  by  the  strong  vote  of  64 
to  43.  An  attempt  was  made  to  increase  the  size  of  the  as- 
sembly, but  the  convention  finally  decided  to  retain  the 
number  fixed  in  1846.^  Biennial  sessions  were  favored  by 
the  committee  on  legislation,  but  by  a  vote  of  62  to  38  the 
convention  decided  to  adhere  to  annual  sessions. 

That  the  Convention  of  1846  had  made  too  many  offi- 
cers elective  and  had  made  their  terms  too  short  is  well 
shown  in  the  exhaustive  and  informing  debate  upon  the 


'This  was  changed  in  1894. 


STATE   OF   NEW   YORK  ^ij 

report  of  the  committee  on  State  officers,  proposing  that 
State  officers  be  elected  at  the  same  time  and  for  the  same 
term  as  the  governor.  Duganne  wished  to  amend  by  provid- 
ing for  the  appointment  of  the  attorney  general  by  the  gov- 
ernor, subject  to  senatorial  confirmation,  and  Democrats  as 
well  as  Republicans  came  to  his  support.  Francis  Kernan 
hoped  the  amendment  would  prevail,  not  because  of  his 
distrust  of  the  people,  but  of  his  belief  that  an  efficient  State 
government  required  the  appointment  of  this  officer  by  the 
governor  and  senate.  In  all  governments,  said  Judge  Daly, 
the  executive  head  should  have  a  cabinet  in  accord  with  him 
upon  all  public  measures  to  be  carried  into  effect  by  execu- 
tive authority.  The  constitution  of  1846  had  altered  the 
former  system,  but  the  alteration  was  not  for  the  better. 
He  would  appoint  all  State  officers  excepting  the  comp- 
troller."* Fuller,  chairman  of  the  committee  on  State  offi- 
cers, also  was  in  favor  of  having  all  State  officers  appointed. 
In  supporting  Duganne's  amendment,  Cassidy  said  that  the 
constitution  of  1846  contained  great  errors.  The  plan  he 
advocated  was  to  elect  the  comptroller,  as  the  head  of  the 
department  of  finance;  have  the  treasurer  appointed,  as 
under  the  system  of  1821,  by  joint  resolution  of  the  two 
houses;  and  have  the  secretary  of  State  and  attorney  gen- 
eral appointed  by  the  governor. 

Numerous  and  able  as  were  the  friends  of  the  short 
ballot,  opinion  in  the  convention  was  divided.  Martin  I. 
Townsend  asked  who  it  was  that  needed  an  attorney  general 
— the  governor  or  the  people?  Believing  him  to  be  the 
people's  representative,  he  favored  election;  so  also  did 
Pierrepont,  who  declared  that  unless  the  convention  was 
prepared  to  say  to  the  people  that  its  judges  should  no 
longer  be  elected,  it  should  not  propose  to  appoint  the  attor- 


*  Within  a  few  years  interest  in  this  subject  has  been  revived. 
Hoffman,  as  far  back  as  1872,  advocated  a  cabinet  of  State  officers, 
appointed  by  the  governor,  and  in  different  forms  the  idea  has  been 
urged  by  Governors  Roosevelt  and  Hughes. 


2i6  CONSTITUTIONAL   HISTORY 

ney  general.  The  attorney  general  should  be  as  independent 
as  any  judge  in  his  opinions  upon  questions  affecting  the 
great  interests  of  the  State,  and  ought  not  to  be  a  creature  of 
the  governor.  Van  Campen  and  Judge  Andrews  favored  ap- 
pointment, as  did  also  Van  Cott  and  Judge  Church,  Church 
arguing  that  the  governor  should  have  at  least  one  officer 
with  whom  he  could  act  and  with  whom  he  might  consult 
upon  terms  of  entire  confidence.  Lapham,  Greeley,  Curtis, 
Opdyke,  Hale,  and  Folger  also  favored  appointment ;  while 
Baker,  M.  H.  Lawrence,  and  Gerry  opposed  it.  Dwight,  in 
arguing  for  it,  said  that  he  would  love  to  see  in  the  State 
of  New  York  "some  dim  reflection  of  those  great  names 
that  in  English  history  had  made  illustrious  the  office  of 
attorney  general" — Mansfield,  Ellenborough,  Eldon — ''men 
who,  commencing  with  the  attorney  generalship,  rose 
through  all  the  grades  of  judicial  office  to  the  very  highest 
position  in  the  law."  Such  was,  in  fact,  the  history  of  the 
office  in  the  State's  earlier  days,  when  Egbert  Benson, 
Aaron  Burr,  Morgan  Lewis,  Ambrose  Spencer,  John  Wood- 
worth,  Martin  Van  Buren,  Thomas  J.  Oakley,  Samuel  A. 
Talcott,  Greene  C.  Bronson,  Samuel  Beardsley  occupied  the 
place  and  ascended  from  it  to  higher  political  station  or  to 
the  bench;  or,  like  John  Van  Buren,  became  master  spirits 
in  party  councils.  After  a  two  days'  debate,  Duganne's 
amendment  was  lost,  the  vote  being  50  in  its  favor  to  66 
against  it. 

The  Convention  of  1867  sought  also  to  remedy  defects 
in  the  provision  of  the  constitution  (section  10,  article  IV) 
relative  to  the  power  of  the  governor  to  veto  bills  sent  him 
by  the  legislature.  This  provision,  which  had  its  origin  in 
the  Convention  of  1821,  upon  the  abolition  of  the  council 
of  revision,  was  almost  identical  with  the  clause  of  the  fed- 
eral constitution  giving  the  President  a  qualified  veto  power 
over  bills  passed  by  Congress.  But  the  practice  which  had 
grown  up  in  this  State  was  different  from  that  which  had 
uniformly  been  followed  by  the  President — to  treat  the  ten- 


STATE   OF   NEW   YORK  217 

day  limitation  as  requiring  his  action  during  the  session  of 
Congress.  In  this  State  the  governor  had  often  signed  bills 
after  the  adjournment  of  the  legislature.  In  i860,  in  the 
case  of  People  v.  Bowen  (21  N.  Y.,  517),  the  court  of 
appeals  expressly  held  that  the  governor  had  power  to  ap- 
prove and  sign  a  bill  more  than  ten  days  after  adjournment 
of  the  legislature.  There  were  two  opinions  from  the  court 
in  support  of  this  view,  the  more  exhaustive  coming  from 
the  pen  of  Mr.  Justice  Gierke.  To  hold  that  the  legislature 
by  adjournment  could  prevent  the  governor  from  vetoing 
a  bill  vv^ould,  he  argued,  be  to  deprive  him  of  his  constitu- 
tional prerogative.  It  was  to  meet  the  contingency  of  a 
veto  that  the  ten-day  provision  was  inserted.  A  bill  is 
returned  by  the  governor  only  when  he  has  vetoed  it.  In 
providing  that  adjournment  within  ten  days  should  not 
prevent  a  "return"  of  the  bill,  the  constitution  was  looking 
to  its  veto,  not  its  approval.  There  could  be  no  object  in 
declaring  a  bill  passed  by  the  two  houses,  but  signed  after 
adjournment,  to  be  no  law.  In  different  States,  said  the 
justice,  the  practice  varied;  in  this  State  it  had  been  the 
practice  of  many  governors  to  sign  bills  after  the  adjourn- 
ment of  the  legislature. 

The  Convention  of  1867  proposed  to  embody  the  sub- 
stance of  this  decision  in  the  organic  law.  It  proposed  also 
to  strengthen  the  veto  power  by  an  express  provision  that 
no  bill  should  be  passed  over  a  veto  save  by  a  two-thirds 
vote  of  all  the  "members  elected"  to  each  house.  Ever 
since  182 1  a  bill  could  be  repassed  by  a  vote  of  two-thirds 
of  the  "members  present"  in  each  body.  In  its  report  to 
the  Convention  of  1867  the  committee  on  governor  and 
lieutenant  governor,  in  favoring  the  change,  said  that  the 
existing  provision  "not  only  greatly  weakened  and  in  a 
manner  rendered  powerless  the  objections  of  the  executive,, 
but  also  virtually  annulled  that  part  of  the  section  requir- 
ing in  the  first  instance  a  majority  of  all  the  members 
elected." 


2i8  CONSTITUTIONAL   HISTORY 

In  one  of  his  messages,  Governor  Fenton  had  suggested 
that  the  time  for  signing  bills  left  over  at  the  end  of  the 
session  should  be  extended  to  thirty  days.  In  the  year  1867, 
135  were  presented  to  him  on  the  day  of  adjournment,  and 
he  afterward  actually  signed  494.^  The  convention,  in- 
stead of  approving  this  suggestion,  decided  to  recommend 
a  ten-day  period.  No  bill  was  to  become  law  by  the  gov- 
ernor's approval  after  the  final  adjournment  of  the  legisla- 
ture, unless  ''sent  by  him  to  the  office  of  the  secretary  of 
State,  within  ten  days  (excluding  Sundays)  after  the  end 
of  the  session."  The  convention,  however,  did  not  approve 
the  proposal,  made  by  Thomas  C.  Alvord,  that  the  governor 
should  have  power  to  veto  distinct  items  in  tax  and  appro- 
priation bills.  But  as  will  be  seen  in  the  next  chapter  the 
constitutional  commission  of  1872  not  only  planned  to  make 
the  consent  of  two-thirds  of  all  the  members  elected  to  each 
house  a  pre-requisite  to  the  passage  of  a  measure  over  execu- 
tive veto,  but  also  proposed  that  no  bill  should  become  law 
after  the  final  adjournment  of  the  legislature,  unless  ap- 
proved by  the  governor  within  thirty  days  after  such  ad- 
journment, and  that  he  might  reject  any  one  or  more  of  the 
items  of  an  appropriation  bill,  while  approving  the  rest. 
Its  recommendations  after  receiving  the  necessary  legisla- 
tive approval  were  ratified  by  the  people  at  the  fall  election 
of  1874,  and  became  part  of  the  constitution. 

The  subject  of  municipal  government  received  much 
consideration.  The  debate  upon  the  conflicting  reports  from 
the  committee  on  cities  was  protracted  and  to  a  certain  ex- 
tent partisan.  The  speeches  of  Harris,  chairman  of  the 
committee  on  cities,  and  of  Opdyke,  also  a  member  of  the 
committee,  presented  in  a  clear  and  striking  light  the  evils 
of  city  government,  and  proposed  remedies  therefor.  The 
majority  report  advocated  a  great  enlargement  of  the  pow- 
ers of  mayors  of  cities.    It  recommended  that  the  mayor  be 


"Lincoln,  Constitutional  Hist.,  II,  336. 


STATE   OF   NEW   YORK  219 

given  exclusive  power  to  appoint  heads  of  departments,  and 
to  remove  at  his  pleasure  all  his  appointees — a  principle 
embodied  in  many  city  charters  to-day.  It  proposed  to  con- 
fer on  cities  absolute  power  of  self-government  and  to  for- 
bid the  legislature  from  interfering  with  their  affairs  ex- 
cept by  passing  general  laws.  In  a  minority  report,  Opdyke 
urged  the  restriction  of  the  elective  franchise  in  local  af- 
fairs. He  proposed  that  the  mayor  and  a  portion  of  the 
common  council  be  elected  by  citizens  having  the  right  to 
vote  for  State  officers,  and  that  comptrollers  and  boards  of 
aldermen  be  chosen  by  persons  owning  property  valued  at 
not  less  than  one  thousand  dollars.  Such  a  limitation 
upon  suffrage  would,  he  argued,  be  sanctioned  by  the  people 
of  the  State;  without  it  he  should  be  constrained  to  vote 
against  every  increase  of  governmental  power  of  cities.  As 
will  hereafter  be  seen,  a  similar  restriction  was  approved  by 
the  Tilden  commission  in  1877.  The  restriction  probably 
caused  the  defeat  of  its  many  excellent  suggestions. 

The  convention  voted  to  report  that  general  laws  should 
be  passed  for  the  organization  of  cities;  that  members  of 
common  councils  should  hold  no  other  office  in  cities,  and 
that  no  city  officer  should  hold  a  seat  in  the  legislature.  Be- 
yond this,  it  contented  itself  with  a  section,  drafted  by 
Henry  C.  Murphy,  the  purport  of  which  was  that  the  mayor 
should  be  chosen  by  the  electors  of  every  city  as  the  chief 
executive  officer;  that  he  should  have  power  to  investigate 
the  acts  of  the  various  city  officers  and  the  right  to  examine 
them  and  their  subordinates  on  oath;  that  he  should  have 
power  also  to  suspend  or  remove  such  officers,  whether 
they  were  elected  or  appointed,  for  misconduct  in  office  or 
neglect  of  duty,  to  be  specified  in  the  order  of  suspension 
or  removal,  but  that  no  removal  should  be  made  without 
reasonable  notice  to  the  officer  complained  of  and  oppor- 
tunity to  be  heard  in  his  defence. 

The  financial  article  (article  VIII)  remained  substan- 
tially as  in  the  constitution  of  1846.    A  new  section  (15)' 


220  CONSTITUTIONAL   HISTORY 

was  proposed — providing  that  real  and  personal  property 
should  be  subject  to  a  uniform  rule  of  assessment  and 
taxation. 

Space  will  not  permit  complete  enumeration  of  the 
changes  finally  adopted  by  the  convention.  For  a  full  list 
the  constitution  reported  by  the  convention  must  be  exam- 
ined. The  rejection  of  the  proposed  constitution  did  not 
mean  the  final  defeat  of  its  suggestions.  The  following 
provisions  which  it  approved  subsequently  found  their  way 
into  the  constitution,  either  in  1874  or  upon  the  ratification 
of  the  work  of  the  Convention  of  1894,  viz. :  abrogation  of 
the  property  qualifications  of  colored  voters,  adopted  in 
1874;  registration  of  citizens  as  a  pre-requisite  to  voting, 
adopted  in  1894;  increase  in  assembly  membership,  adopted 
in  1894;  prohibition  of  the  audit  by  the  legislature  of  pri- 
vate claims  against  the  State,  and  of  the  grant  of  extra 
compensation  to  public  officers  or  contractors,  adopted  in 
1874;  prohibition  of  local  or  special  laws  in  certain  cases, 
adopted  in  1874;  election  of  secretary  of  State,  comptroller, 
treasurer,  and  attorney  general  at  the  same  time  and  for  the 
same  term  as  the  governor,  adopted  in  1894.  The  Conven- 
tion of  1867  framed  provisions  regarding  bribery,  that  were 
adopted  in  a  modified  form  in  1894.  It  proposed  also  that 
the  question  of  calling  a  constitutional  convention  should  be 
determined  by  a  majority  of  the  votes  cast  upon  that  ques- 
tion only.  This  in  a  modified  form  was  adopted  in  1894. 
Some  of  its  ideas  regarding  city  government  became  fruit- 
ful in  later  years.  Much  of  its  excellent  work  finally  be- 
came part  of  the  organic  law  of  the  State,  although  its  in- 
corporation into  the  constitution  was  deferred  for  a  longer 
or  shorter  period. 

Following  the  example  of  its  predecessors,  the  conven- 
tion appointed  a  select  committee  to  draft  an  address  to  the 
people.  This  draft,  the  work  of  Charles  J.  Folger,  briefly 
summarized  the  proposed  amendments,  commending  atten- 
tion to  the  stringent  provisions  it  had  framed  to  stop  bribery 


STATE   OF   NEW   YORK  221 

at  elections  and  to  check  abuses  in  the  disposition  of  pubHc 
money;  its  proposed  restrictions  upon  the  passage  of  special 
laws;  its  proposed  abolition  of  the  offices  of  canal  commis- 
sioners, and  substitution  of  a  single  head  to  the  canal  sys- 
tem, to  be  appointed  by  the  governor  and  senate;  its  plan 
for  the  creation  of  a  constitutional  court  of  claims;  and  for 
the  organization  and  government  of  cities;  its  proposed 
changes  in  the  control  of  State  prisons,  and  its  drastic  meas- 
ures to  prevent  corruption  in  office  and  bribery  of  officials. 
In  language  similar  to  that  employed  in  previous  addresses, 
the  convention  expressed  its  belief  that  if  its  work  should 
find  favor  with  the  people,  the  government  of  the  State 
would  be  safe  and  beneficent,  "and  the  Commonwealth,  with 
the  favor  of  the  Ruler  of  all  events,  be  borne  forward  for 
another  generation  in  increasing  happiness  and  prosperity." 
The  convention  had  prolonged  its  sessions  beyond  the 
November  election  of  1867,  notwithstanding  the  statutory 
mandate  requiring  its  work  to  be  submitted  to  the  people 
at  the  fall  election  of  that  year.  Its  report  was  not  com- 
pleted until  February  28,  1868.  On  that  day  its  proposed 
constitution  was  agreed  to  by  a  vote  of  84  in  favor  to  31 
against  it — Comstock,  Amasa  J.  Parker,  Church,  Murphy, 
and  Daly  being  prominent  among  the  dissenters.  A  resolu- 
tion was  passed  to  authorize  absent  members  to  sign  it 
before  its  submission  to  the  people  and  previous  to  the  third 
of  the  following  November.  The  question  of  submission 
was  in  fact  most  perplexing.  From  the  outset  it  had  led  to 
numerous  debates  and  the  expression  of  much  diversity  of 
opinion.  The  first  two  constitutions  had  never  been  sub- 
mitted to  voters  for  ratification,  and  one  source  of  contro- 
versy between  the  legislature  which  met  in  the  spring  of 
1820  and  the  council  of  revision  was  whether  provision 
should  not  be  made  for  the  submission  of  different  articles 
separately.  The  Convention  of  1821  decided  to  submit  its 
work  for  approval  or  disapproval  in  its  entirety,  and  a  like 
course  was  pursued  in  1846,  except  as  to  two  special  mat- 


222  CONSTITUTIONAL   HISTORY 

ters.  Chapter  194,  Laws  of  1867,  left  it  to  the  discretion 
of  the  convention  to  determine  whether  its  amendments 
should  be  submitted  as  a  whole  or  separately.  Whether  it 
had  power  to  fix  a  different  date  of  submission  from  that 
named  in  the  law  provoked  differing  opinions,  some  arguing 
that  it  had  such  power,  others  that  it  had  not.  Differences 
arose  as  to  whether  the  people  should  be  asked  to  vote  upon 
the  constitution  at  the  regular  election  or  at  a  special  elec- 
tion, when  the  public  mind  would  not  be  preoccupied  with 
other  issues.  The  separate  submission  of  different  ques- 
tions was  urged  by  some  and  opposed  by  others ;  Comstock, 
for  instance,  declaring  that  if  the  convention  decided  to 
submit  all  its  proposals  as  an  entirety,  he  would  not  sign 
its  report.  The  wording  of  the  various  questions  to  be  pre- 
sented to  the  people  aroused  much  debate.  This  was  par- 
ticularly so  as  to  the  property  qualification  for  negro  suf- 
frage. The  question,  it  was  said,  should  be  put  in  such 
clear  and  concise  language  that  voters  would  know  to  a  cer- 
tainty the  exact  point  upon  which  their  opinion  was  asked. 
A  vote  to  submit  the  proposed  constitution  at  a  special  elec- 
tion in  June,  1868,  was  lost  in  the  convention,  40  to  65; 
and  a  vote  to  submit  it  at  the  general  election  in  November, 
1868,  carried,  61  to  31. 

On  February  28,  1868,  the  convention  adjourned  sine 
die.  The  assembly  thereupon  passed  a  bill  for  submission  at 
the  general  election  of  that  year,  which  the  senate  would  not 
approve.  By  Chapter  538,  Laws  of  1868,  the  legislature 
ratified  the  continuance  of  the  convention's  sessions  after 
the  first  Tuesday  of  November,  1867,  and  authorized  the 
payment  of  all  its  expenses  down  to  the  date  of  its  close. 
But  the  act  specially  provided  that  nothing  therein  con- 
tained should  be  "held  or  construed  to  affirm  or  ratify  any 
form  or  mode  of  submission  to  the  people  of  the  constitu- 
tion by  said  convention  proposed."  This  prevented  submis- 
sion that  year.  On  April  24,  1869,  by  Chapter  318,  Laws 
of  1869,  the  legislature  specifically  authorized  submission 


STATE   OF   NEW   YORK  223 

at  the  general  election  of  that  year.  Four  ballot  boxes 
were  provided  in  order  to  give  voters  opportunity  to  express 
their  opinion  upon  the  constitution  as  a  whole,  upon  the 
judiciary  article,  upon  the  proper  method  of  assessing  and 
taxing  real  and  personal  property  and  upon  the  wisdom  of 
retaining  property  qualifications  for  colored  men.  As  was 
noted  in  chapter  X,  the  proposed  constitution  (section  17, 
article  VI)  provided  for  the  submission  of  two  questions  at 
the  general  election  in  the  year  1873 — ^^^  with  respect  to 
the  election  or  appointment  of  the  chief  judge  and  associate 
judges  of  the  court  of  appeals  and  of  justices  of  the  su- 
preme court,  the  other  with  respect  to  the  appointment  of 
the  judges  mentioned  in  sections  12  and  15  of  article  VI. 
The  results  of  this  last  vote  have  heretofore  been  given.^ 
The  proposed  constitution,  with  the  exception  of  the  judi- 
ciary article,  was  on  November  2,  1869,  voted  down,  the 
vote  against  it  being  290,456  to  223,935  in  its  favor.  The 
convention's  proposal  to  abolish  property  qualifications  for 
colored  voters  and  its  proposal  to  subject  real  and  personal 
property  to  a  uniform  rule  of  taxation  were  defeated. 


•  See  page  201. 


224  CONSTITUTIONAL   HISTORY 


CHAPTER    XII 

GOVERNOR  HOFFMAN  PROPOSES  A  CONSTITUTIONAL  COM- 
MISSION IN  LIEU  OF  A  NEW  CONVENTION HIS  SUGGES- 
TIONS    FOR     CONSTITUTIONAL    REFORM CHAPTER     884, 

LAWS  OF  1872,  AUTHORIZING  THE  GOVERNOR  TO  APPOINT 
A  COMMISSION PERSONNEL  OF  THE  COMMISSION RE- 
SEMBLANCES BETWEEN  ITS  SUGGESTIONS  AND  THE  CON- 
STITUTION   DRAFTED    IN    1 86/ ENLARGEMENT    OF    THE 

SPHERE  OF  INELIGIBILITY  TO  THE  LEGISLATURE PROHI- 
BITION OF  LOCAL  AND  SPECIAL  LEGISLATION THE  NA- 
TURE   OF     PRIVATE    AND    LOCAL    LAWS    TO     BE    FAIRLY 

SPECIFIED   IN    TITLES PROHIBITION    AGAINST   AUDIT    OR 

ALLOWANCE  OF  PRIVATE  CLAIMS  AGAINST  THE  STATE 

INCREASE  OF  LEGISLATIVE  POWERS  OF  BOARDS  OF  SUPER- 
VISORS  SUGGESTION  AS  TO  PRIVATE  BILLS  NOT  APPROVED 

BY  THE  LEGISLATURE HISTORY  OF  PRIVATE  LEGISLA- 
TION  IN    GREAT   BRITAIN PROPOSED  RE-CREATION    OF   A 

COUNCIL    OF    REVISION ENLARGEMENT    OF    GOVERNOR'S 

VETO    POWER THIRTY-DAY    BILLS PROPOSED    INCREASE 

OF      G0VERN0R''S      TERM PROPOSED      APPOINTMENT      OF 

STATE  OFFICERS SALE  OF  NON-PAYING  LATERAL  CANALS 

PROVISIONS    AS    TO    CHARTERS    OF    SAVINGS    BANKS 

CONSTITUTIONAL  LIMITATIONS  UPON  POWER  OF  CITIES 
AND  COUNTIES  TO  INCUR  INDEBTEDNESS ENORMOUS  EX- 
TENT OF  SUCH  INDEBTEDNESS  IN   1 872 PROHIBITION  OF 

CITY  OR  COUNTY  INDEBTEDNESS  IN  AID  OF  PRIVATE  EN- 
TERPRISE  COMMISSION  PROPOSES  TWO  NEW  ARTICLES 

THE      BRIBERY     ARTICLE DIFFERENCE      BETWEEN      THE 

PLAN  OF  THE  COMMISSION  AND  THAT  OF  THE  CONVEN- 
TION   OF    1867 THE    MUNICIPAL    ARTICLE — LATER    RE- 


STATE    OF    NEW    YORK  225 

STRAINTS     UPON     LOCAL     EXPENDITURE ADOPTION     OF 

MANY  SUGGESTIONS  OF  THE  COMMISSION  BY  THE  LEGIS- 
LATURE AND  THE  PEOPLE COMMISSION  AN  INNOVATION 

IN  THE  state's  HISTORY. 

The  constitution  which  had  been  formulated  with  such 
care  and  intelligence  by  the  Convention  of  1867  was,  with 
the  exception  of  its  judiciary  article,  defeated  at  the  polls 
in  1869  by  an  adverse  vote  of  more  than  66,000.  Yet  this 
disapproval  so  emphatically  registered  was,  by  one  of  those 
reversions  so  common  in  poHtics,  to  be  followed  in  1874  by 
a  measurable  degree  of  approval;  for  in  that  year  the  peo- 
ple by  majorities  ranging  from  120,000  to  360,000  ratified 
many  of  the  convention's  proposals,  either  in  the  form  in 
which  they  had  been  framed  by  it  or  as  they  had  been  re- 
vised in  the  constitutional  commission  of  1872.  The  peo- 
ple seem  unable  to  pass  upon  many  questions  simultane- 
ously. The  white  heat  of  1868  and  1869  had  cooled  in  five 
years,  and  the  electorate  was  then  ready  to  consider  the 
work  of  the  convention  upon  its  merits.  Constitutional  re- 
form profoundly  interested  Governor  Hoffman  who,  what- 
ever history  may  say  regarding  his  association  with  the 
Tweed  ring,  rose  toward  the  close  of  his  term  as  governor 
to  the  height  of  statesmanship. 

Hoffman  had  begun  his  career  as  recorder  of  New  York 
City;  he  had  been  mayor,  and  afterward  an  unsuccessful 
candidate  for  his  party's  nomination  for  the  governorship 
in  1866,  and  became  governor  in  1868,  in  a  campaign  in 
which  false  registration  and  fraudulent  voting  were  be- 
lieved to  have  been  practised  upon  a  colossal  scale.  His 
opportunities  for  the  study  of  State  and  city  government 
had  been  exceptional  and  had  been  wisely  improved.  He 
was  among  the  first  to  advocate  the  legislation  that  culmi- 
nated in  the  Tilden  taxpayers'  acts.  His  message  to  the 
legislature,  January  2,  1872,  reads  like  an  essay  upon  con- 
stitutional reform,  and  is  replete  with  excellent  suggestions. 


226  CONSTITUTIONAL   HISTORY 

The  governor  seems  to  have  carefully  studied  the  delibera- 
tions of  the  Convention  of  1867.  After  allusion  to  its  work 
and  its  rejection  by  the  people — with  the  exception  of  the 
judiciary  article — he  pronounced  the  existing  constitution 
defective  "as  a  framework  of  efficient  republican  govern- 
ment." He  would  not,  he  said,  recommend  another  con- 
vention, for  popular  attention  would  be  engrossed  during 
the  year  by  a  presidential  canvass ;  but  he  proposed  instead 
the  appointment  of  a  commission  of  thirty- two  eminent 
citizens  to  be  selected  equally  from  each  of  the  two  leading 
political  parties.  Such  a  commission  might  have  ''all  the 
benefit  of  the  debate  incident  to  a  larger  body  through  in- 
telligent discussions  in  the  press  and  the  voluntary  sugges- 
tions of  thoughtful  citizens,"  and  its  report  could  not  be 
expected  until  after  the  presidential  election,  when  the  pub- 
lic mind  would  be  able  to  examine  it  calmly.  In  his  opin- 
ion a  constitution  from  such  a  source,  when  approved  by 
the  legislature,  and  also  by  the  people,  would  be  as  duly 
established  as  if  the  suggestions  of  the  commission  had,  in 
the  first  instance,  emanated  from  the  legislature  itself. 

In  analyzing  defects  in  the  organic  law,  the  governor 
showed  an  interesting  coincidence  of  view  with  the  major- 
ity opinion  of  the  Convention  of  1867.  The  secretary  of 
state  and  the  attorney  general  should,  he  argued,  be  ap- 
pointed by  the  governor  and  hold  office  during  his  pleasure. 
The  comptroller,  the  superintendent  of  canals,  and  the  su- 
perintendent of  prisons  might  be  appointed  by  the  governor 
either  with  or  without  the  senate's  consent,  and  should  hold 
office  during  the  same  term  as  the  governor  and  be  re- 
movable by  him  at  any  time  for  cause.  The  State  treasurer, 
as  actual  custodian  of  public  moneys,  and,  perhaps,  also 
the  superintendent  of  public  instruction,  should  be  appointed 
by  joint  ballot  of  the  two  houses.  Additional  safeguards 
against  local  and  special  legislation  were  urgently  necessary. 
The  number  of  laws  passed  for  a  score  of  years  had  ex- 
ceeded upon  the  average  five  hundred  a  year  and  for  the 


STATE   OF   NEW   YORK  227 

previous  six  years  had  surpassed  eight  hundred  a  year. 
Special  legislation  was  the  chief  cause  of  this  great  volume 
of  statutes.  There  was  no  profit  in  limiting  the  legislative 
session  to  one  'hundred  days,  as  this  had  not  lessened  the 
volume  of  legislation,  but  induced  haste  and  carelessness 
in  its  passage.  The  governor  urged  that  power  should  be 
reposed  in  the  chief  executive  of  the  State  to  prorogue  the 
legislature  after  it  had  been  in  session  for  one  hundred  days. 

His  views  regarding  the  composition  of  the  senate  and 
the  assembly  bore  close  resemblance  to  those  advocated  in 
the  Convention  of  1867.  The  senate  should  consist  of  rep- 
resentatives versed  in  public  affairs ;  its  very  name  imported 
that  it  should  be  a  council  of  men  of  long  experience  and 
every  inducement  should  be  offered  to  invite  a  high  order  of 
minds  to  service  in  it.  "A  long  term  and  a  large  constitu- 
ency would  greatly  enhance  the  dignity  of  office  of  senator, 
and  make  it  attractive  to  our  most  distinguished  citizens. 
If  the  senatorial  term  were  made  four  or  five  years  and  the 
State  were  divided  into  a  small  number  of  senatorial  dis- 
tricts, so  as  to  throw  the  choice  of  senator  upon  a  large  con- 
stituency, and  the  compensation  made  a  fair  one,  the  ablest 
and  most  experienced  of  our  public  men  would  be  found 
ready  to  apply  themselves  in  the  senate  to  the  important 
duty  of  securing  good  laws  for  the  people."  Hoffman  fa- 
vored also  the  restoration  of  county  representation  in  the 
assembly.  Doubtful  of  the  wisdom  of  attempting  to  frame 
a  universal  charter  for  the  cities  of  the  State,  a  skepticism 
still  shared  by  many,  he  advocated  "more  specific  constitu- 
tional restraints  upon  legislative  power  to  grant  special  char- 
ters for  corporations,  upon  special  legislation  generally, 
upon  legislative  awards  of  extra  compensation  to  claimants 
under  contracts  and  otherwise."  The  veto  power  also 
should  be  made  more  effectual. 

Hoffman's  home-rule  doctrines  were  sound.  True  de- 
centralization would  consist  in  giving  to  the  people  of  every 
county  and  of  the  other  political  subdivisions  of  the  Stat^ 


228  CONSTITUTIONAL   HISTORY 

autonomous  control  of  their  own  local  affairs.  They  should 
not  possess  the  power  of  selecting  State  officers  whose 
duties  were  exclusively  connected  with  general  affairs  of 
the  State  and  the  enforcement  of  State  laws.  It  is  inter- 
esting to  hear  from  a  Democratic  governor  the  confession 
that  "the  framers  of  the  constitution  of  1846,  eager  for 
decentralization  of  power,  made  the  mistake  of  supposing 
that  this  was  to  be  effected  by  breaking  apart  and  discon- 
necting the  machinery  whereby  the  State  government  is  to 
be  carried  on  and  by  multiplying  the  number  of  elective 
officers." 

In  accordance  with  the  governor's  recommendation,  the 
legislature  passed  an  act,^  which  he  approved,  authorizing 
him  to  nominate,  and  with  the  advice  and  consent  of  the 
senate  to  appoint,  a  commission  of  thirty-two  persons,  four 
from  each  judicial  district  of  the  State,  to  propose  to  the 
legislature  at  its  next  session  such  amendments  to  the  con- 
stitution (exclusive  of  the  recently  adopted  judiciary  ar- 
ticle) as  the  commission  might  deem  proper.  The  act  pro- 
vided also  the  mode  of  filling  vacancies  in  the  commission, 
the  place  of  its  meeting,  compensation  of  its  members,  and 
other  incidental  matters.  Pursuant  to  this  enactment.  Gov- 
ernor Hoffman  nominated  and  the  senate  confirmed  thirty- 
two  commissioners,  six  of  whom  had  been  delegates  to  the 
Convention  of  1867,  and  to  whose  presence  in  the  commis- 
sion the  close  correspondence  in  the  work  of  these  two 
bodies  may  partially  be  ascribed.  These  men  were  George 
Opdyke,  who  had  succeeded  Fernando  Wood  as  mayor  of 
New  York  City  in  1861 ;  Augustus  Schell;  Erastus  Brooks, 
editor  of  the  New  York  Evening  Express;  David  Rumsey, 
who  had  represented  his  district  in  Congress ;  William  Cas- 
sidy,  the  accomplished  editor  of  the  Albany  Argus,  who  was 
destined  not  to  live  to  the  close  of  his  term  as  commissioner; 
and  Francis  Kernan,  a  leading  lawyer,  who  in  1874  was 


'  Chapter  884,  Laws  of  1872. 


STATE   OF   NEW   YORK  229 

elected  to  represent  the  State  in  the  United  States  Senate. 
George  B.  Bradley,  who  subsequently  occupied  a  place  upon 
the  bench  of  the  court  of  appeals,  second  division,  and  Lu- 
cius Robinson,  successor  of  Samuel  Tilden  in  the  governor- 
ship, were  also  members  of  the  commission.^  It  assembled 
in  the  council  chamber  of  the  city  of  Albany,  December 
4,  1872.  Robert  H.  Pruyn  was  chosen  permanent  chair- 
man. Its  sessions  continued  until  March  15,  1873,  when  it 
adjourned  sine  die.  On  March  24  it  reported  to  the  assem- 
bly, and  on  March  25  to  the  senate,  numerous  amendments 
to  the  constitution,  and  two  new  articles,  one  relating  to 
municipal  government,  the  other  to  the  crime  of  bribery. 
The  commission  gave  little  heed  to  memorials  for  the 
enfranchisement  of  women,  or  to  arguments  of  the  "Com- 
mittee of  Seventy"  of  New  York  City  for  minority  or  pro- 
portional representation  in  municipal  charters  and  county 
government.  Impressed  alike  by  the  danger  incident  to  the 
growing  use  of  money  in  elections  and  by  the  repugnance 
of  legislatures  to  the  exercise  of  the  power  bestowed  by  the 
existing  constitution  to  pass  statutes  against  bribery,  it  pro- 
posed to  embody  in  the  organic  law  drastic  provisions  ex- 
cluding bribers  and  the  recipients  of  bribes  from  the  exer- 
cise of  the  elective  franchise,  substantially  approving  the 


'The  names  of  the  members  were:  John  D.  Van  Buren,  George 
Opdyke,  Augustus  Schell,  John  J.  Townsend,  Erastus  Brooks,  Odle 
Close,  John  J.  Armstrong,  Benjamin  D.  Silliman,  William  Cassidy, 
Robert  H.  Pruyn,  George  C.  Burdett,  Cornelius  L.  Tracy,  Artemas  B. 
Waldo,  James  M,  Dudley,  Samuel  W.  Jackson,  Edward  W.  Foster, 
Daniel  Pratt,  Ralph  Mcintosh,  Francis  Kernan,  Elias  W.  Leavenworth, 
Lucius  Robinson,  John  F.  Hubbard,  Jr.,  Jonas  M.  Preston,  and  Barna 
R.  Johnson,  appointed  in  place  of  Francis  M.  Finch,  who  had  been 
appointed  in  place  of  Orlo  W.  Chapman,  both  of  whom  resigned  be- 
fore the  first  meeting  of  the  Commission.  George  B.  Bradley,  Van 
Rensselaer  Richmond,  Horace  V.  Howland,  David  Rumsey.  Mr. 
Rumsey  resigned  in  January,  1873;  Guy  H.  McMaster  was  appointed 
to  succeed  him,  but  declined,  and  the  place  was  filled  by  the  appoint- 
ment of  Lysander  Farrar.  Sherman  S.  Rogers,  Cyrus  E.  Davis,  Ben- 
jamin Pringle,  and  Lorenzo  Morris.  Opdyke,  Schell,  Brooks,  Qr  ■'-'^ 
Rumsey  and  Kernan  had  sat  in  the  Convention  of  1867. 


2S0  CONSTITUTIONAL   HISTORY 

amendment  drafted  by  the  Convention  of  1867  to  check 
this  evil.  This  amendment  after  its  adoption  by  two  suc- 
cessive legislatures  was  ratified  by  the  people  in  the  fall  of 
1874.^  But  the  commission  declined  to  recommend  an 
amendment  approved  in  the  convention  requiring  registra- 
tion to  be  uniform  in  all  cities. 

The  commission  proposed  to  increase  the  term  of  sena- 
tors to  four  years,  and  to  divide  the  State  into  eight  senate 
districts,  each  of  which  should  choose  four  senators,  one 
every  year — a  slight  departure  from  the  plan  urged  in  the 
Convention  of  1867  (but  voted  down  upon  the  floor  of  that 
body),  to  elect  one-half  of  the  senate  every  two  years.  One 
object  which  the  commission  sought  to  effectuate  was  the 
creation  in  that  chamber  of  a  reviewing  power  free  from 
mere  local  influence,  to  some  extent  analogous  to  that  lodged 
in  the  chief  executive.  It  was  thus  hoped  to  stop  the  pas- 
sage of  much  "special  and  ill-digested"  legislation,  which 
in  existing  conditions  could  be  nullified  only  by  unsparing 
use  of  the  governor's  veto  power.  There  was  a  physical 
limit  to  a  governor's  use  of  the  veto,  for  adequate  review 
of  all  bills  transmitted  to  him  was  impossible  in  the  short 
time  at  command.  The  senate  should  act  as  a  check  upon 
unnecessary  laws.  For  this  purpose  it  should  be  a  dignified 
body  free  from  too  narrow  local  influences.  To  obtain  such 
a  senate  the  constituency  of  senators  should  be  enlarged, 
the  districts  made  fewer  and  the  term  be  lengthened.  The 
senatorial  oflice,  said  the  commission,  "should  be  one  which 
the  ablest  and  most  experienced  men  in  the  district  should 
compete  for  and  accept,"  and  the  annual  renewal  of  one- 
fourth  of  the  senate  should  "insure  the  continual  presence 
of  a  large  number  of  experienced  members."  But  its  pro- 
posed reconstitution  of  the  senate  failed  of  legislative  ac- 
ceptance, and  was  never  submitted  to  popular  vote.  It  dif- 
fered from  the  convention  and  from  Governor  Hoffman  in 


*  See  Section  2  of  Article  II. 


STATE   OF   NEW   YORK:  ^31 

not  favoring  return  to  county  representation  in  the  assem- 
bly. 

In  1 8 19  Roger  Skinner  was  simultaneously  federal 
judge,  State  senator  and  member  of  the  council  of  appoint- 
ment. The  constitution  of  1822  therefore  forbade  any  per- 
son who  was  a  member  of  Congress  or  held  a  judicial  or 
military  office  under  the  United  States  from  holding  a  seat 
in  the  State  legislature.  In  1870  Tweed  while  State  senator 
held  also  the  lucrative  and  influential  commissionership 
of  public  works  in  New  York  City.  The  commission  of 
1872  proposed  to  enlarge  the  sphere  of  legislative  ineligi- 
bility so  that  no  future  Tweed  could  hold  a  city  and  State 
office  at  the  same  time.  It  favored  such  a  change  in  the 
constitution  as  would  provide  that  no  person  should  be 
chosen  to  either  house  who,  within  one  hundred  days  prior 
to  his  election,  had  been  a  member  of  Congress,  a  civil  or 
military  officer  of  the  United  States,  or  an  officer  under  any 
city  government;  and  that  if  any  person  after  his  election 
to  the  legislature  should  be  elected  to  Congress  or  appointed 
to  any  civil  or  military  office  under  the  United  States  or 
under  any  city  government,  his  acceptance  thereof  should 
vacate  his  seat.  This  amendment  met  with  due  legislative 
approval  and  was  ratified  by  the  people  at  the  November 
election  in  1874. 

In  its  discussion  of  the  subject  of  special  legislation,  the 
commission  declared  that  three- fourths  of  all  statutes  were 
in  reality  special  acts.  Had  the  constitution  forbidden  spe- 
cial laws  where  general  laws  were  feasible  the  volilme  of 
legislation  would  have  been  reduced  one-half,  and  the  legis- 
lature would  have  had  more  time  to  devote  to  the  general 
interests  of  the  State.  Following  the  example  of  the  Con- 
vention of  1867,  it  reported  the  prohibition  of  private,  spe- 
cial, or  local  laws  in  a  number  of  cases,  but  enlarged  the  list 
fixed  by  that  body.  Two  legislatures  accepted  a  number  of 
its  suggestions,  and  the  inhibition  upon  special  legislation, 
thus  modified,  was  ratified  by  the  people  in  1874.    The  com- 


232  CONSTITUTIONAL   HISTORY 

mission  added  two  sections  to  article  III — one  declaring  that 
no  private,  special,  or  local  law  should  embrace  more  than 
one  subject,  which  should  be  named  in  its  title,  and  that  any 
such  law  embracing  more  than  one  subject  should  be  void, 
and  the  other  declaring  that  no  act  should  be  passed  which 
should  provide  that  any  existing  law  or  any  part  thereof 
should  be  made  or  deemed  a  part  of  said  act,  or  which 
should  enact  that  any  existing  law  or  any  part  thereof 
should  be  applicable,  except  by  inserting  it  in  such  act.  It 
added  a  section,  similar  to  one  favored  in  1867,  forbidding 
the  legislature  to  audit  or  allow  any  private  claim  or  ac- 
count against  the  State,  although  it  was  permitted  to  apjM"o- 
priate  money  to  pay  claims  audited  and  allowed  according 
to  law.  All  these  amendments  received  due  approval  and 
became  part  of  the  organic  law. 

The  commission  proposed  to  alter  the  existing  constitu- 
tion so  as  to  require  the  legislature  by  general  laws  to  con- 
fer upon  boards  of  supervisors  of  counties  such  further 
powers  of  local  legislation  and  administration  as  the  legis- 
lature might  from  time  to  time  deem  expedient,  which  was 
adopted.  It  proposed  to  deprive  the  legislature  and  the 
common  council  of  any  city  and  any  board  of  supervisors, 
of  power  to  grant  extra  compensation  to  any  public  officer, 
servant,  agent  or  contractor,  which  also  was  adopted. 

Some  suggestions  of  the  commission  upon  the  subject  of 
legislation  were  not  approved  by  the  legislature,  and  there- 
fore were  not  submitted  to  the  people  for  ratification.  Of 
this  class  was  its  proposal  that  every  bill  introduced  into 
the  legislature  should  be  considered  and  read  twice,  section 
by  section,  in  the  senate  and  assembly ;  that  every  bill  should 
have  three  readings,  no  two  on  the  same  day;  that  every 
bill  and  all  amendments  to  it  should  be  printed  and  distrib- 
uted among  the  members  of  each  house  at  least  one  day  be- 
fore the  vote  upon  its  final  passage ;  that  the  question  on  the 
final  passage  should  be  taken  immediately  upon  the  last 
reading,  section  by  section,  and  by  yeas  and  nays  to  be 


STATE   OF   NEW   YORK  233 

entered  upon  the  journals;  and  that  the  assent  of  a  majority 
of  the  members  elected  to  each  house  should  be  requisite  to 
the  passage  of  every  bill.  In  effect,  this  was  incorporated 
in  the  constitution  in  1894. 

Section  18,  as  reported  by  the  commission  of  1872,  is 
as  follows : 


"No  private,  special  or  local  bill  shall  be  introduced  in  any  regular 
session  after  sixty  days  from  the  commencement  thereof,  without,  in 
each  case,  the  recorded  consent  by  yeas  and  nays  of  three-fourths  of 
all  the  members  elected  to  the  house  in  which  such  bill  is  offered; 
and  no  such  bill  shall  be  passed  unless  public  notice  of  the  intention 
to  apply  therefor  and  of  the  general  objects  of  the  bill  shall  have 
previously  been  given.  The  legislature,  at  the  next  session  after  the 
adoption  of  this  section,  and  from  time  to  time  thereafter,  shall  pre- 
scribe the  time  and  mode  of  giving  such  notice,  the  evidence  thereof 
and  how  such  evidence  shall  be  preserved." 


The  main  purpose  of  this  provision — which  unfortu- 
nately was  not  approved  by  the  legislature  and  therefore 
never  submitted  to  the  people — was  to  inform  the  public  as 
to  all  private  bills  introduced  into  the  senate  or  assembly, 
and  thereby  to  secure  to  those  most  interested  in  defeating 
their  passage  ample  opportunity  to  register  opposition. 
This  was  the  first  attempt  in  the  State  of  New  York  to 
adopt  the  principle  of  the  parliamentary  standing  orders 
which  have  proved  an  invaluable  safeguard  in  Great  Brit- 
ain against  the  passage  of  improper  private  or  local  bills. 
In  the  matter  of  private  legislation  the  example  of  Great 
Britain  is  worthy  of  emulation.  The  passage  of  special 
legislation  through  parliament  is  in  the  nature  of  a  judicial 
proceeding.  All  private  or  special  bills  must  be  filed  sixty 
days  before  parliament  convenes,  and  all  whose  interests 
such  bills  may  affect  adversely  must  be  given  ample  notice 
to  file  objections.  The  promoters  of  a  bill  are  required  to 
deposit  sufficient  sums  to  meet  the  expenses  of  the  proceed- 
ings. If  they  fail  to  give  the  requisite  notice  or  otherwise 
fail  to  comply  with  the  standing  orders  of  parliament  the 


234  CONSTITUTIONAL   HISTORY 

proceeding  is  dropped.  If  the  requirements  of  the  stand- 
ing orders  have  been  observed,  the  bill  is  referred  to  a 
special  parliamentary  committee,  and  if  its  objects  are  ap- 
proved, it  must  be  made  to  harmonize  with  existing  legisla- 
tion before  becoming  law.*  The  attempt  to  pass  a  section 
of  this  tenor  was  renewed  in  the  legislature  in  January,^ 
1896,  but  it  failed  to  secure  the  needed  votes. 

Erastus  Brooks  proposed  to  create  a  council  of  revision 
to  consist  of  two  senators,  the  chief  judge  or  one  of  the 
associate  judges  of  the  court  of  appeals,  the  attorney  gen- 
eral and  the  governor,  the  governor  to  designate  every  year 
the  senators  and  judge  who  should  form  part  of  the  coun- 
cil, but  the  committee  to  which  the  project  was  referred,  in 
declining  to  recommend  its  adoption,  declared  that  a  similar 
experiment  had  been  tried  and  had  signally  failed  in  the 
early  history  of  the  State.  The  reasons  given  in  the  Conven- 
tion of  182 1  for  abolishing  the  council  of  revision  and 
which  are  valid  to-day  against  a  revisory  council  in  which 
judges  sit  were  that  it  mingled  judicial  and  legislative  func- 
tions that  ought  to  be  kept  separate,  gave  the  judges  potent 
influence  in  shaping  legislation,  and  tended  to  make  them 
politicians.     A   senate  with  a  longer  term,  elected   from 


*"With  but  very  rare  exceptions,"  says  Mr.  Simon  Sterne,  "the 
House  of  Commons  regards  the  findings  of  a  committee  on  a  private 
or  local  bill  as  final.  This  method  of  ascertaining  the  merits  of  a 
measure  is  so  complete,  the  examination  of  witnesses  and  experts  is  so 
thorough,  every  element  that  can  enlighten  the  mind  of  the  legislator 
has  been  brought  to  bear  with  so  much  accuracy  and  forensic  skill  that 
the  margin  of  human  error,  after  such  a  trial,  is  very  small."  Gov- 
ernor Roosevelt,  in  his  message  of  1899,  directed  attention  "to  the 
custom  of  the  British  Parliament,  which  puts  upon  the  would-be  bene- 
ficiary the  cost  of  all  private  and  special  legislation,  and  wisely  makes 
it  difficult  to  obtain  at  all,  and  impossible  to  obtain  without  full  ad- 
vertisement and  discussion.  No  special  law,"  he  added,  "should  be 
passed  where  a  general  law  would  serve  the  purpose."  For  a  full 
account  of  Private  Bill  Legislation  in  England,  see  Chapter  XX,  of 
the  "Government  of  England,"  by  A.  Lawrence  Lowell,  President  of 
Harvard  University. 


STATE   OF   NEW   YORK  235 

fewer  and  larger  districts,  would  be  a  far  more  salutary 
check  upon  improper  and  incoherent  laws.^ 

The  commission  terminated  the  controversy  which  had 
perplexed  the  conventions  of  1821,  1846,  and  1867  as  to  the 
number  of  members  of  each  house  necessary  to  pass  a  bill 
over  the  governor's  veto.  The  provision  which  it  reported 
made  the  consent  of  two-thirds  of  the  members  elected  to 
each  house  essential  to  the  passage  of  a  vetoed  bill.  It  fur- 
ther reported  that  no  bill  should  become  a  law  after  the 
final  adjournment  of  the  legislature,  unless  approved  by 
the  governor  within  thirty  days  after  adjournment.  These 
proposals,  the  first  of  which  had  been  favored  by  the  Con- 
vention of  1867,  and  both  of  which  had  been  advocated  by 
Governor  Hoffman,  were  adopted  by  two  legislatures  and 
by  the  people  and  form  part  of  the  constitution. 

Another  and  much-needed  amendment  reported  by  the 
commission,  which  also  found  its  way  into  the  constitution, 
empowers  the  governor  to  veto  one  or  more  items  of  an  ap- 
propriation bill,  while  approving  its  other  features.  In  this 
particular  the  constitution  of  New  York  is  more  flexible 
than  the  Federal  constitution.  The  State  has  not  suffered 
more  from  improper  riders  upon  appropriation  bills  than 
has  the  general  government.  But  this  pernicious  practice 
on  the  part  of  Congress,  which  was  temporarily  checked  by 
President  Hayes'  resolute  action  in  1879,  cannot  perhaps  be 
effectually  suppressed  without  an  amendment  to  the  Federal 
constitution. 

The  commission  proposed  also  that  the  governor's  and 
the  lieutenant  governor's  term  be  increased  to  three  years. 
This  amendment  was  ratified  and  went  into  effect  on  Janu- 
ary I,  1875,  too  late,  however,  to  have  influence  upon  Gov- 

*  Nevertheless,  an  advisory  council  of  revision  properly  organ- 
ized would  be  an  invaluable  instrumentality  in  the  formulation  of  legis- 
lation. A  commission  organized  under  Chapter  1025,  Laws  of  1895, 
reported  to  the  legislature  of  1896  a  scheme  to  govern  the  introduction 
of  private  bills  and  the  method  of  procedure  after  their  introduction, 
but  its  suggestions  never  bore  practical  fruit  in  legislation. 


236  CONSTITUTIONAL   HISTORY 

ernor  Tilden's  term;  but  his  successors — Robinson,  Cor- 
nell, Cleveland,  Hill,  and  Flower — each  served  for  three 
years.  On  January  i,  1895,  the  term  of  the  chief  magis- 
trate was  reduced  to  two  years.  It  would  have  been  far 
better  had  the  Convention  of  1894  made  the  governor's 
term  and  the  term  of  senators  four  years.  The  commission 
also  reported  amendments  providing  that  the  comptroller 
be  elected  at  the  same  time  with  the  governor  and  for  a 
like  term,  and  that  the  secretary  of  state,  attorney  general 
and  State  engineer  and  surveyor  be  appointed  by  the  gov- 
ernor with  the  consent  of  the  senate,  and  hold  their  offices 
until  the  end  of  the  term  of  the  governor  by  whom  they 
should  be  nominated  and  until  their  successors  were  ap- 
pointed. These  amendments  were  not  approved  by  the 
legislature  and  were  therefore  not  voted  upon  by  the  people.^ 
The  commission  proposed  the  creation  of  two  new  State 
officers,  a  superintendent  of  public  works  to  take  the  place 
of  the  canal  commissioner,  and  a  superintendent  of  State 
prisons  to  take  the  place  of  the  former  prison  inspectors — 
the  superintendent  of  State  prisons  to  be  appointed  by  the 
governor  with  the  consent  of  the  senate  for  five  years,  the 
superintendent  of  public  works  to  be  appointed  in  like  man- 
ner and  hold  office  until  the  end  of  the  term  of  the  governor 
by  whom  he  was  nominated.  These  changes,  after  adoption 
by  two  legislatures,  met  with  popular  approval  and  were 
incorporated  in  the  constitution.  The  commission  pro- 
posed that  the  treasurer  should  be  chosen  by  the  senate 
and  assembly  in  joint  ballot  and  hold  office  for  three  years. 
This  proposal  was  not  acceptable  to  the  legislature  and  the 
treasurer,  as  also  the  secretary  of  State,  comptroller  and 
attorney-general  continued  to  be  elected  as  before  and  to 
hold  their  office  for  two  years.  Under  the  first  constitution 
the  treasurer  was  selected  by  the  two  houses  upon  nomina- 


*The  short-ballot  advocates  of  to-day  would  give  the  governor 
power  to  appoint  all  State  officers,  without  confirmation  by  the  senate, 
and  to  remove  them  at  his  pleasure. 


STATE   OF   NEW   YORK  237 

tion  by  the  assembly,  and  under  the  constitution  of  1822 
by  both  houses  upon  joint  ballot,  if  the  two  chambers 
should  not  agree  in  their  nomination.  That  constitution 
had  provided  for  the  election  of  the  secretary  of  vState, 
comptroller,  surveyor  general,  and  attorney  general  in  like 
manner  with  the  treasurer.  The  plan  of  the  constitutional 
commission  was  a  return  to  the  plan  of  1822  in  the  election 
of  State  treasurer.  The  office  of  district  attorney,  an  out- 
growth in  1 801  of  the  office  of  assistant  attorney  general, 
was  by  the  constitution  of  1822  placed  within  the  appointive 
power  conferred  upon  the  county  courts  and  in  1846  district 
attorneys  were  made  elective.  In  the  constitutional  commis- 
sion, as  in  the  Convention  of  1867,  a  disposition  was  mani- 
fested to  treat  this  official  as  a  sort  of  deputy  attorney  gen- 
eral and  to  give  his  appointment  to  the  governor — an  idea 
urged  by  Governor  Hoffman;  but  the  plan  did  not  prevail."^ 
The  commission  decided  that  most  of  the  lateral  canals 
had  outlived  their  usefulness  and  would  continue  in  the  fu- 
ture, as  they  had  proved  in  the  past,  a  burden  to  the  State. 
It  declared  that  the  time  had  arrived  to  relieve  the  canal 
system  from  the  odium  due  to  non-paying  laterals.  It 
therefore  recommended  a  modification  of  section  6,  article 
VII,  restricting  the  prohibition  upon  the  sale,  lease,  or  other 
disposition  of  the  canals  of  the  State,  to  the  Erie,  Cham- 
plain,  Oswego,  Cayuga  and  Seneca.  This  modification  was 
found  acceptable  to  the  .legislature  and  was  approved  by 
the  people,  but  a  few  years  afterward  it  was  decided  to 
include  the  Black  river  canal  among  the  non-disposable 
canals.    Although  the  revenues  from  the  laterals  had  never 


''According  to  Hammond,  Governor  De  Witt  Clinton  in  his 
first  message  (1818)  "recommended  several  important  improvements 
in  our  municipal  laws,  among  which  was  the  abolition  of  the  division 
of  the  State  into  districts,  for  the  purpose  of  criminal  prosecutions, 
and  the  appointment  of  an  attorney  for  the  people  in  each  district; 
and  he  advised,  in  lieu  of  this  system,  the  appointment  of  an  attorney 
for  the  people  in  each  county."  "Political  History  of  New  York,"  I, 
449»  4^0. 


238  CONSTITUTIONAL   HISTORY 

equalled  the  cost  of  their  maintenance,  they  had  served  the 
purpose  of  opening  communication  with  fertile  lands  in  the 
interior  of  the  State,  to  which  their  discontinuance  caused 
a  temporary  disadvantage,  as  these  sections  thereafter  be- 
came exclusively  dependent  upon  railway  transportation.^ 
In  the  interval  between  1874  and  1882  attempts  had  unsuc- 
cessfully been  made  to  sell  the  Chemung,  Crooked  lake, 
Genesee  valley,  and  Black  river  canals.  Because  of  the 
failure  of  these  efforts  the  legislature  decided  to  retain  the 
Black  river  canal  as  a  valuable  feeder  to  the  Erie.  An 
amendment  made  in  1882  added  it  to  the  list  of  inalienable 
canals. 

To  section  3  of  article  VII  the  commission  proposed  to 
add,  "no  extra  compensation  shall  be  made  to  any  contrac- 
tor, but  if  from  any  unforeseen  cause  the  terms  of  any 
contract  shall  prove  to  be  unjust  and  oppressive,  the  canal 
board  may,  upon  the  application  of  the  contractor,  cancel 
such  contract."  And  it  proposed  to  take  from  the  legisla- 
ture, the  canal  board,  the  canal  appraisers,  and  their  agents, 
power  to  audit,  allow,  or  pay  any  claim  ''which,  as  between 
citizens  of  the  State,  would  be  barred  by  lapse  of  time." 
These  two  amendments  became  part  of  the  constitution  on 
January  i,  1875. 

The  commission  proposed  also  to  amend  section  4,  ar- 
ticle VIII,  by  requiring  that  the  legislature  should  by  gen- 
eral law  conform  all  charters  of  savings  banks  or  institu- 
tions for  savings  to  a  uniformity  of  powers,  rights  and  lia- 
bilities, and  that  all  charters  thereafter  granted  for  such 
corporations  should  be  made  to  conform  to  such  general  law 
and  to  amendment  thereto.  No  such  corporation  was  to  be 
permitted  to  have  capital  stock,  nor  were  the  trustees  to 
possess  any  interest,  direct  or  indirect,  in  the  profits  of  the 
corporation  nor  to  be  interested  in  any  loan  or  use  of  its 
money  or  other  property.     This  amendment  was  ratified  and 

'Whitford's  "History  of  the  Canals,"  781,  785.  Hill,  Waterways 
apd  Ca,nal  Construction,  N.  Y.,  194.    Report  of  Commission  of  187:3, 


STATE   OF   NEW   YORK  239 

is  now  in  the  constitution.  The  amendment  eradicated  an 
evil  which  had  sprung  from  the  creation  of  savings  banks 
with  stock,  under  special  charters,  without  proper  restric- 
tions upon  the  investment  of  their  funds.  Actuated  by  the 
desire  to  make  large  profits  and  declare  handsome  dividends, 
some  savings  banks  had  taken  risks  entirely  inconsistent 
with  the  nature  of  their  business,  to  the  great  injury  of  de- 
positors ;  and  the  temptation  to  such  risks  was  increased  by 
their  having  capital  stock  of  which  the  directors  or  trustees 
could  be  holders.  In  his  annual  message,  January  4,  1870, 
Governor  Hoffman  informed  the  legislature  that  128  sav- 
ings banks  had  theretofore  been  organized  in  this  State  with 
an  aggregate  of  assets  exceeding  $180,000,000.  The  mag- 
nitude and  importance  of  the  savings  bank  interest  seemed, 
he  thought,  to  demand  more  intimate  guardianship  and 
more  careful  supervision.  In  his  message  in  January,  1872, 
he  declared  that  careless  legislation  regarding  savings  bank 
and  other  moneyed  incorporations  had  become  an  evil  so 
great  as  to  constrain  him  to  refuse  his  signature  to  68  bills 
for  the  incorporation  or  increase  of  the  powers  of  this  class 
of  institutions. 

In  1846  a  ban  had  wisely  been  placed  upon  State  aid  to 
private  enterprise.  The  experience  of  intervening  years 
convinced  the  commission  that  a  like  prohibition  should  be 
applied  to  cities  and  other  local  subdivisions  of  the  common- 
wealth. The  report  of  its  committee  on  city,  town,  and 
county  indebtedness  contained  striking  proofs  of  reckless 
abuse  of  power  in  the  creation  of  local  obligations  for  fu- 
ture generations  to  pay.  In  aid  of  railroads  there  had  been 
issued  by  towns,  cities,  and  villages  bonds  then  remaining 
unpaid  amounting  to  $26,946,662.09.^  For  the  erection  of 
public  buildings  obligations  amounting  to  more  than  $10,- 
000,000  had  been  incurred.  The  debt  for  roads,  boulevards, 
streets,  avenues  and  bridges  was  $36,000,000;  for  water- 

'  See  Report  of  Special  Committee  to  the  commission  February  28, 
1873. 


240  CONSTITUTIONAL   HISTORY 

works  and  fire  apparatus,  $29,cmx),ooo  ;  and  for  parks  and 
various  other  local  improvements,  $84,000,000.  Counties, 
cities,  towns,  and  villages  of  the  State  were  staggering 
under  the  enormous  indebtedness  of  $214,344,676.58,  which 
was  more  than  ten  per  cent,  of  the  assessed  valuation  of  real 
and  personal  property  within  the  State.  The  commission's 
conclusion  was  that  in  order  to  avoid  disastrous  financial 
results  restraint  should  be  put  upon  the  power  of  munici- 
palities to  incur  debt.  It  therefore  recommended  the  addi- 
tion of  two  new  sections  to  article  VIII.  It  added  a  new 
section  (10)  which  declares  that  neither  the  credit  nor  the 
money  of  the  State  shall  be  given  or  loaned  to  or  in  aid  of 
any  association,  corporation  or  private  undertaking,  but 
that  the  section  shall  not  prevent  the  legislature  from  mak- 
ing provision  for  the  education  and  support  of  the  blind, 
the  deaf  and  dumb  and  juvenile  delinquents,  nor  apply  to 
any  fund  or  property  held  or  to  be  hereafter  held  by  the 
State  for  educational  purposes.  Section  10  received  ade- 
quate legislative  approval,  was  approved  by  the  people  and 
became  part  of  the  constitution. 

As  proposed  by  the  commission  section  1 1  forbade  every 
city,  town  or  village  not  only  from  lending  its  money  or 
credit  to  any  private  enterprise  but  from  incurring  indebt- 
edness exceeding  ten  per  cent,  of  the  value  of  the  taxable 
property  within  its  limits.  No  county  was  to  be  allowed  to 
incur  any  indebtedness  save  for  county  or  municipal  pur- 
poses. Section  11  was  modified  by  the  legislature  and  as 
changed  by  it  was  approved  by  the  people.  In  its  changed 
form  it  prohibited  every  city,  county,  town  or  village  from 
thereafter  giving  any  money  or  property  or  loaning  its 
money  or  credit  in  aid  of  any  individual,  association  or 
corporation  or  from  becoming  directly  or  indirectly  the 
owner  of  stock  in  or  bonds  of  any  association  or  corpora- 
tion and  it  prohibited  every  county,  city,  town  or  village 
from  incurring  any  indebtedness  except  for  county,  city, 
town  or  village  purposes — the  prohibition,  however,  not  to 


STATE   OF    NEW   YORK  241 

preclude  provision  for  aid  or  support  of  the  poor.  These 
amendments  had  become  eminently  necessary  because  of 
the  latitudinary  construction  which  the  courts  (particularly 
those  of  the  United  States)  had  given  to  the  powers  of 
municipalities  and  towns  in  the  loan  of  their  money  and 
credit  to  railroads  and  other  private  enterprises.  vSimilar 
constitutional  restrictions  were  adopted  about  the  same  time 
in  many  other  States.  A  new  section  (9)  was  also  added 
to  article  X,  providing  that  no  officer  whose  salary  is  fixed 
by  the  constitution  should  receive  any  additional  compen- 
sation; that  the  compensation  of  other  State  officers  named 
in  the  constitution  should  be  fixed  by  law,  and  be  neither 
increased  nor  diminished  during  their  terms;  and  that  no 
State  officer  should  receive  to  his  use  any  fees  or  perquisites 
of  office  or  other  compensation.  Article  III,  relating  to  the 
oath  of  office,  was  also  amended.  Despite  the  stringent 
oath  now  required  from  legislators  and  the  severe  penalties 
enforced  against  all  found  guilty  of  bribery  at  elections,  the 
offence  continues  to  be  common. 

All  these  amendments  were  subsequently  approved  by 
two  legislatures  and  ratified  by  the  people. 

The  commission  proposed  two  additional  articles  to  the 
constitution :  Articles  XV  and  XVI.  Article  XV  related 
to  municipal  reforms  and  will  be  analyzed  in  the  next 
chapter.  Article  XVI  related  to  bribery.  This  article 
was  adopted  and  is  article  XIII  of  the  present  con- 
stitution. The  article  makes  it  a  felony  for  any  per- 
son holding  office  under  the  laws  of  this  State  to  receive 
any  money  except  his  legal  salary,  or  any  fees  or  perquisites 
or  anything  of  value  or  of  personal  advantage  or  any 
promise  of  either,  for  the  performance  or  non-performance 
of  any  official  act  or  upon  the  express  or  implied  under- 
standing that  his  official  action  is  to  be  influenced  thereby. 
The  article  further  provides  that  any  person  who  shall  offer 
or  promise  a  bribe,  if  it  shall  be  received,  shall  be  deemed 
guilty  of  a  felony  and  liable  to  punishment.     The  briber 


242  CONSTITUTIONAL    HISTORY 

shall  not  be  privileged  from  testifying  upon  any  prosecu- 
tion of  the  officer  for  receiving  such  bribe ;  but  he  shall  not 
be  liable  to  civil  or  criminal  prosecution  for  offering  the 
bribe  if  he  shall  testify  to  offering  or  giving  it.  Offering  a 
bribe  which  shall  be  refused  is  made  a  felony.  The  article 
also  permits  either  the  briber  or  the  bribed  to  testify  in  his 
own  behalf  in  any  civil  or  criminal  prosecution  for  the 
bribery.  Any  district  attorney  failing  to  prosecute  a  per- 
son amenable  under  this  article  shall  be  removed  from  office 
by  the  governor,  after  due  notice  and  an  opportunity  to  be 
heard  in  his  defence.  Expenses  incurred  in  any  county  in 
investigating  and  prosecuting  any  charge  of  bribery  or  at- 
tempt at  bribery  within  such  county  are  made  a  charge 
against  the  State,  and  their  payment  by  the  State  must  be 
provided  for  by  law. 

The  Convention  of  1867  proposed  that  if  a  person 
should  offer  a  bribe,  and  it  be  accepted,  he  should  not  be 
liable  to  civil  or  criminal  prosecution  therefor.  The  feeling 
in  the  convention  was  that  convictions  for  bribery  would 
never  take  place  under  existing  laws;  it  therefore  con- 
cluded that  the  briber  must  be  absolutely  immune  if  the 
bribee  was  to  be  reached  and  punished.  The  commission 
of  1872  was  unwilling  to  go  as  far  in  leniency  toward  the 
briber,  but  it  relieved  him  from  liability  if  he  would  testify 
to  the  giving  of  the  bribe,  whereas  no  such  immunity  was 
offered  to  the  recipient  of  the  bribe.  It  seems  remarkable 
that  to  offer  a  bribe  which  is  refused  is  more  dangerous 
than  to  offer  one  which  is  accepted!  This  article  was  ap- 
proved by  two  legislatures  and  ratified  in  1874.^^  It  is  in 
section  3,  article  XIII,  of  the  constitution  of  1894. 


"According  to  the  Committee  on  Official  Corruption  in  the  Con- 
vention of  1867,  corruption  of  legislators  was  common  but  extremely- 
difficult  to  prove,  owing  to  the  immunity  extended  by  the  constitu- 
tion to  both  the  giver  and  the  recipient  of  the  bribe.  While  legisla- 
tive corruption  was  the  evil  to  be  eradicated,  a  corrupt  legislature 
could  not  be  expected  to  furnish  the  remedy;  hence  the  people  must 
supply  it  in  the  organic  law.    In  weighing  the  turpitude  of  the  giver 


STATE   OF    NEW    YORK  243 

Section  11  of  article  VIII  was  destined  to  further  alter- 
ation in  the  direction  of  restraint  upon  local  expenditure. 
As  has  been  seen,  the  legislature  of  1874  did  not  accept  all 
the  suggestions  of  the  commission  of  1872  upon  this  subject, 
and  agitation  for  more  effective  restriction  continued.  In 
1 88 1  the  legislature  recommended  an  amendment  to  section 
II  of  article  VIII — the  section  proposed  by  the  commission 
of  1872  and  ratified  by  the  people  in  1874.  The  amend- 
ment proposed  in  1881  forbade  any  county  containing  a 
city  of  over  100,000  inhabitants  or  any  such  city  from  con- 
tracting any  indebtedness  which  with  its  existing  indebted- 
ness should  exceed  ten  per  cent,  of  the  assessed  valuation  of 
the  real  estate  of  such  county  or  city  subject  to  taxation. 


and  the  taker  of  the  bribe,  the  latter  might  justly  be  considered  the 
worse  offender,  for  he  violated  both  his  official  oath  and  his  trust. 
Since  it  was  obvious  that  no  conviction  could  be  had  under  the  act 
of  1853  (Chapter  539,  Laws  of  1853),  which  treated  both  classes  of 
offenders  alike,  the  constitution  would  have  to  exculpate  the  successful 
briber,  if  the  recipient  of  the  bribe  were  to  be  punished.  There  was 
force  in  the  cogent  dissent  of  Martin  I.  Townsend  who  regarded  the 
act  of  1853  as  adequate,  and  thought  that  legislation  of  this  nature 
did  not  belong  in  the  organic  law.  The  discrimination  which  permit- 
ted the  briber  to  practice  his  nefarious  trade  he  regarded  as  pernicious. 
Much  evidence  suggestive  of  bribery  had  been  taken  by  the  Committee 
under  authority  previously  given  it  by  the  convention.  Townsend  de- 
clared that  it  had  not  been  the  policy  of  the  State  to  punish  the  se- 
duced and  let  the  seducer  go  free.  As  he  said  later  in  debate:  "Sup- 
pose the  owner  of  several  great  railroads  were  the  sort  of  man  to 
bribe  the  legislature  and  should  use  the  funds  of  his  road  to  prevent 
just  legislation  adverse  to  its  interests,  would  it  be  safe  and  right  to 
provide  in  the  constitution  that  he  should  incur  no  risk?  Would  it 
not  be  dangerous  to  say  in  the  organic  law  that  the  professional  lobby- 
ist who  should  be  adroit  enough  to  carry  out  his  objects  should  be 
guilty  of  no  crime  whatsoever?"  Comstock,  in  supporting  the  article, 
said  that  only  one  of  the  two  could  be  found  guilty,  and  which  one 
is  guilty  depends  upon  the  question  whether  the  offence  is  consum- 
mated by  the  acceptance  of  the  bribe.  If  it  is,  then  the  person  receiv- 
ing the  bribe  is  the  guilty  party,  and  if  it  is  not,  he  is  not;  but  if  the 
offence  is  not  consummated,  then  he  who  offered  the  bribe  is  the  guilty 
person  and  can  be  convicted. 

After  an  experience  of  forty  years  with  this  provision,  bribery  has 
not  been  stopped,  but,  it  is  feared,  has  alarmingly  increased. 


244  CONSTITUTIONAL   HISTORY 

This  amendment,  having  received  the  necessary  legislative 
approval,  was  submitted  for  popular  ratification  in  Novem- 
ber, 1884,  and  became  part  of  the  constitution  on  January 
I,  1885.  But  curtailment  of  local  power  over  local  moneys 
was  not  yet  at  end.  Section  1 1  was  amended  by  the  Consti- 
tutional Convention  of  1894,  which  also  changed  the  num- 
ber of  the  section,  making  it  number  10.  The  amendment  of 
1885  was  limited  to  a  county  containing  a  city  of  upward 
of  100,000  inhabitants,  or  to  a  city  of  like  dimensions  The 
amendment  of  1894  was  more  general:  it  forbade  every 
county  and  city  from  incurring  indebtedness  exceeding  ten 
per  cent,  of  the  assessed  valuation  of  its  real  estate  subject 
to  taxation.  Amendments  since  made  to  this  section  relate 
especially  to  the  debts  to  be  eliminated  in  the  computation  of 
the  ten  per  cent,  indebtedness.  As  they  chiefly  affect  cities 
and  particularly  the  City  of  New  York,  explanation  of  them 
will  be  reserved  for  a  later  chapter.  The  creation  of  assess- 
ment districts  and  sewer  districts  covering  several  cities, 
towns  or  villages,  with  power  to  issue  bonds  to  pay  for 
proposed  improvements,  in  effect  burdens  each  of  the  cities, 
towns  or  villages  within  the  larger  area  with  indebtedness 
in  excess  of  the  ten  per  cent,  limit.  To  this  extent  constitu- 
tional prohibitions  are  frustrated. 

Thus,  through  the  agency  of  the  constitutional  commis- 
sion acting  as  an  aid  to  the  legislature,  many  of  the  excel- 
lent suggestions  of  the  Convention  of  1867  ultimately  en- 
tered the  organic  law  of  the  State.  This  beneficent  result 
was  largely  due  to  Governor  Hoffman,  originator  of  the 
plan  for  a  constitutional  commission.  The  antipathy  of  his 
party  to  the  work  of  the  late  convention  had  been  emphati- 
cally declared  in  the  platform  of  the  Democratic  State  Con- 
vention in  1869,  which  resolved  that  "the  amended  consti- 
tution, with  its  various  schedules  for  submission  to  the  elec- 
tors, did  not  commend  itself  to  the  favor  of  the  Democrats 
of  the  State,  either  by  the  motives  in  which  it  was  con- 
ceived or  by  the  manner  in  which  it  was  presented,  or  by 


STATE   OF   NEW   YORK  245 

its  intrinsic  worth" ;  but  the  governor  rose  superior  to  party 
considerations  in  his  treatment  of  the  subject,  and  thus  res- 
cued much  of  the  splendid  work  of  the  convention  from 
utter  defeat. 

The  commission  of  1872  was  an  innovation  in  constitu- 
tional evolution  in  this  State.  The  experiment  of  an  inter- 
mediate body  summoned  into  being  to  advise  and  report  to 
the  legislature  upon  constitutional  reform  had  never  before 
been  tried  in  its  history.  The  device  proved  so  successful 
that  it  was  again  employed  in  1890.  Commissions  of  this 
nature  are  likely  to  contain  men  of  higher  talent,  wider 
learning,  and  greater  constitutional  knowledge  than  the 
ordinary  legislator  or  delegate  has.  As  their  number  is 
small,  their  deliberations  may  be  conducted  with  more  order 
and  advantage  than  attend  the  proceedings  of  a  large  con- 
vention. Judge  Jameson  has  questioned  the  constitutionality 
of  amendments  originating  in  commissions  not  expressly 
authorized  by  the  organic  law;  but  there  does  not  seem  to 
be  any  valid  objection  to  the  creation  of  such  bodies,  be- 
cause their  work  is  futile  if  not  accepted  by  the  legislature. 
Whenever  accepted,  it  becomes  in  effect  the  work  of  the 
legislature  as  completely  as  though  initiated  by  it.  Such 
commissions  merely  report  to  the  legislature ;  they  exercise 
no  coercive  power  over  it.  The  argument  carried  to  an  ex- 
treme would  preclude  any  suggestion  to  the  legislature  from 
an  outside  source  respecting  the  propriety  of  an  amendment. 
A  commission  exercises  no  more  coercion  over  a  legislature 
than  the  public  sentiment  to  which  all  commissions  and  legis- 
latures are  or  should  be  alike  sensitive  and  alike  amen- 
able. 


246  CONSTITUTIONAL   HISTORY 


CHAPTER    XIII 

NEW  YORK  AND  ALBANY  ONLY   CITIES   MENTIONED  IN   CON- 
STITUTION OF   1777 FREEDOM  OF  THE  CITY CITIES  OF 

THE  STATE  FEW  IN  NUMBER  IN  1846 HOME  RULE  IN- 
STINCT    AS     OLD     AS     CIVILIZATION EARLY     AMERICAN 

CITIES     LIKE    ENGLISH     PROTOTYPES NEW     YORK     CITY 

CHARTERS,   DUTCH    AND   ENGLISH DONGAN    CHARTER 

CITY  CHARTER  OF   183O  AND  ITS  DEFECTS CHARTER  OF 

1849 LEGISLATIVE     USURPATION  OF  CITY  GOVERNMENT 

IN    .1857,     REASON     THEREFOR,     AND     RESULTS TWEED 

CHARTER      OF      187O CHARTER     OF      1 873 ATTENTION 

FIRST  FOCUSED  ON  CITY  MAL-ADMINISTRATION  AFTER 
CIVIL  WAR TREATMENT  OF  CITY  PROBLEMS  BY  CONVEN- 
TION OF  1867,  AND  COMMISSION  OF  1872. 

The  only  cities  mentioned  in  the  constitution  of  1777  are 
New  York  City  and  Albany,  and  this  reference  was  neces- 
sary to  prevent  a  denial  to  freemen  of  either  city  of  the 
right  to  vote  for  assemblymen.  During  the  colonial  period, 
only  the  freemen  of  a  borough  or  city  could  practice  any 
art,  trade,  or  occupation  within  its  limits ;  in  New  York  City 
and  Albany,  freemen  alone  were  allowed  to  be  merchants, 
traders,  or  shopkeepers.  Freemen  equally  with  property 
holders  were  allowed  to  vote,  and  were  qualified  to  hold 
corporate  office.  When  the  Convention  of  1821  sat,  cities 
were  few  in  number,  and  such  as  then  existed  enjoyed  spe- 
cial charters.  In  the  Convention  of  1846  the  subject  of 
municipal  government  received  scant  attention;  the  meagre 
outcome  of  its  brief  discussion  in  the  final  days  of  its  ses- 
sions was  embodied  in  the  provision  (Sec.  i.  Art.  VIII) 


STATE   OF   NEW   YORK  247 

that  corporations  might  be  formed  under  general  laws,  but 
should  not  be  created  by  special  act  except  for  municipal 
purposes,  and  in  cases  where,  in  the  judgment  of  the  legis- 
lature, the  objects  of  the  corporation  could  not  be  attained 
under  general  laws.  Only  nine  cities  had  been  incorporated 
in  this  State  down  to  1846;  the  number  since  has  been 
greatly  multiplied.  In  this  State  the  problem  of  the  city 
may  fairly  be  said  to  have  arisen  since  the  close  of  that 
convention. 

Cities  are  as  old  as  civilization.  In  ancient  Greece,  near- 
ly every  city  was  an  independent  sovereignty.  In  ancient 
Rome,  cities  possessed  more  or  less  completely  the  right  of 
self-government,  and  while  under  the  empire  they  were 
more  essentially  parts  of  the  vast  political  organism,  as  to 
local  affairs  they  were  treated  like  autonomous  communi- 
ties. In  some  instances  their  privileges  survived  the  de- 
cadence of  the  empire,  and  when  feudalism  spread  through- 
out Europe  they  became  recipients  of  special  charters  ex- 
empting them  from  customary  feudal  obligations.  These 
charters,  says  Chancellor  Kent,  were  cherished  by  their  in- 
habitants as  ^'invaluable  barriers  against  the  insecurities 
and  oppression  of  the  feudal  system."  In  England  the  first 
municipal  charter  appears  to  have  been  granted  to  the  city 
of  Kingston-upon-Hull,  in  1429.  The  rights  which  cities 
came  to  enjoy  were,  according  to  Bishop  Stubbs,^  ''free 
election  of  magistrates,  independent  exercise  of  jurisdiction 
in  their  own  courts,  and  by  their  own  customs  and  the  direct 
negotiation  of  their  taxation  with  the  officers  of  the  ex- 
chequer." The  character  of  these  grants  is  somewhat  nebu- 
lous, but  such  privileges  as  were  conferred  were  defended 
with  vigor  against  the  sovereign  and  the  noble.  The  love 
of  home  rule,  the  instinct  for  self-government,  seems  to  be 
as  old  as  civilization. 

According  to  Cooley,  the  first  American  municipalities 


'Constitutional  History  of  England,"  vol.  I,  628. 


248  CONSTITUTIONAL   HISTORY 

"were  formed  in  the  likeness  of  their  British  archetype/' 
Like  the  English  municipal  corporation,  the  early  American 
city  was  mainly  an  organization  for  the  satisfaction  of 
purely  local  needs,  which  were  then  few  and  simple ;  execu- 
tive and  judicial  functions  were  usually  merged  in  the  same 
set  of  officers,  and  it  was  seldom  that  the  city  had  the  power 
to  levy  taxes  for  local  purposes.^ 

*Even  in  colonial  days,  the  legislature  was  reluctant  to  give  the 
city  power  to  levy  local  taxes.  In  Dutch  times  the  city  of  New  Am- 
sterdam had  its  own  revenues,  which  often  rendered  resort  to  direct 
taxation  unnecessary.  Improvements  were  paid  for  by  special  assess- 
ments. The  method  of  special  assessment  seems  to  have  been  intro- 
duced in  1657  for  the  pavement  of  what  now  constitutes  Stone  street, 
the  first  street  in  New  Amsterdam  to  be  paved.  Under  early  English 
rule  the  city's  revenues  were  frequently  adequate  to  pay  the  charges 
imposed  upon  the  public,  and  to  render  unnecessary  any  direct  prop- 
erty tax.  After  the  provincial  assembly  was  established  in  1691,  taxes 
for  municipal  purposes  were  levied  only  by  its  special  permission,  and 
up  to  about  1750  such  legislation  was  rarely  necessary,  as  the  city 
revenues  usually  sufficed  to  meet  its  annual  bills.  Its  income  came 
from  its  ferries,  its  dock,  tavern  licenses,  special  license  charges  to 
merchants  and  handicraftsmen,  and  other  miscellaneous  sources;  its 
expenditures  for  salaries,  repairs  of  public  buildings  and  property,  and 
repair  of  the  common  sewer,  were  made  out  of  its  income.  The  light- 
ing and  cleaning  of  the  streets  had  to  be  done  by  the  citizens  them- 
selves, and  improvements  were  defrayed  by  special  assessments.  After 
the  Revolution,  the  State  legislature  followed  the  precedent  set  by  the 
colonial  assembly  in  granting  authority  to  levy  taxes  for  local  pur- 
poses year  by  year  as  the  city  needed  the  power,  and  in  1813  the  same 
power  to  levy  taxes  for  local  purposes  was  conferred  upon  it  as  was 
bestowed  upon  supervisors  of  counties.  The  machinery  of  assessment 
for  taxation  and  of  taxation  is  provided  by  Chapter  86  of  the  session 
laws  of  that  year.  By  Chapter  262,  Laws  of  1823,  the  supervisors  of 
the  different  counties  were  required  to  meet  on  the  first  Tuesday  of 
October  in  every  year  and  examine  the  several  assessment  rolls  of 
the  several  towns  within  the  county,  and  the  mayor,  recorder  and 
aldermen  of  the  city  of  New  York  were  required  to  perform  all  the 
duties  enjoined  upon  supervisors  of  counties,  which  included  the 
power  of  levying  taxes.  Chapter  83,  Laws  of  1825,  provided  that  the 
mayor,  recorder,  and  aldermen  of  the  city  of  New  York  should  be 
supervisors  of  the  city,  and  as  such  annually  meet  on  the  third  Tues- 
day of  August  at  the  City  Hall  to  examine  the  assessment  rolls,  equal- 
ize and  correct  valuations,  and  thereafter  levy  taxes.  From  about  this 
time  down  to  and  including  1852,  the  legislature  seems  annually  to 
have  authorized  the  city  authorities  acting  as  county  officials  to  raise 


STATE   OF   NEW   YORK  249 

The  first  charter  of  New  Amsterdam  came  from  the 
Dutch  government  February  2,  1654.  It  partakes  of  the 
nature  of  the  liberal  charters  theretofore  granted  to  cities  in 
the  Netherlands.  Upon  the  surrender  of  the  fort  to  the 
English,  August  2y,  1664  (O-  S.),  Colonel  NicoU  gave  its 
inhabitants  under  the  corporate  name  of  the  mayor,  alder- 
men, and  sheriff  a  new  charter,  which  recognized  their 
former  privileges.  The  Dongan  charter,  in  which  New 
York  is  described  as  "an  ancient  city,"  in  turn  confirmed  all 
the  rights  which  the  city  had  enjoyed  under  its  Dutch  name 
of  Schout,  Burgomasters,  and  Schepens  of  New  Amster- 
dam, as  well  as  all  more  recent  grants  under  British  rule, 
conferred  upon  it  ownership  of  all  waste,  vacant,  unpat- 
ented and  unappropriated  lands  within  the  city  and  upon 
Manhattan  Island — sale  of  which  lands  was  to  become  a 
source  of  revenue  to  the  city — extended  its  jurisdiction  to 
low-water  mark  upon  both  the  Long  Island  and  the  New  Jer- 
sey shore;  authorized  a  government  by  a  mayor,  recorder, 
town  clerk,  six  aldermen,  and  six  assistants  under  the  name 
of  the  mayor,  aldermen  and  commonalty  of  the  city,  in 
whom  was  vested  power  from  time  to  time  to  make,  amend, 
and  alter  laws  and  ordinances  so  long  as  they  should  not  be 
repugnant  to  the  laws  of  England  or  of  the  provincial  as- 
sembly, which  laws  were  to  be  binding  for  the  space  of 
three  months  and  no  longer,  unless  confirmed  by  the  gov- 
ernor and  council.  The  mayor  and  also  the  recorder  were 
annually  to  be  appointed  by  the  lieutenant  governor,  and 
the  aldermen  and  their  assistants  chosen  by  a  majority  of 

by  tax  a  sum  not  in  excess  of  an  amount  fixed  in  the  act,  in  order 
to  defray  the  various  expenses  legally  chargeable  to  the  city  and 
county.  In  1853  the  legislature  began  to  supervise  appropriations  with 
far  more  minuteness.  Chapter  232  of  that  year  provided  that  the 
board  of  supervisors  should  be  empowered  to  order  and  cause  to  be 
raised  by  tax  and  to  be  collected  according  to  law  "a  sum  not  exceed- 
ing $2,354,925,  for  the  objects  and  purposes  following,  to  wit" — which 
was  followed  by  a  long  detailed  specification  of  the  items  of  appropri- 
ation. Legislative  appropriations  and  authorizations  of  tax  levies 
continued  until  about  1873. 


^50  CONSTITUTIONAL   HISTORY 

the  votes  of  the  inhabitants  of  each  ward  quaHfied  to  vote. 
This  charter,  which  bestowed  a  large  measure  of  self-gov- 
ernment upon  the  city,  was  confirmed  by  the  Montgomerie 
charter  of  1730;  both  charters  were  confirmed  by  an  act  of 
the  colonial  assembly  in  1732;  and  the  first  constitution  of 
the  State  expressly  saved  from  abrogation  all  charters  to 
bodies  politic  made  by  authority  of  George  III.  or  his 
predecessors. 

For  a  considerable  period  after  the  adoption  of  the  first 
constitution  changes  in  the  charter  of  New"  York  City 
were  made  upon  the  initiative  of  the  qualified  voters  of  the 
city,  through  the  medium  of  charter  conventions,  the  mem- 
bers of  which  were  elected  by  city  voters.  Few  statutes 
affecting  only  the  affairs  of  the  City  of  New  York  passed 
by  the  legislature  in  that  interval  took  effect  until  they  had 
been  approved  by  popular  referendum.  Thus,  in  1829,  dele- 
gates to  a  convention  to  amend  the  city  charter  were  chosen 
by  voters  of  the  city  from  its  fourteen  wards.  This  con- 
vention, which  included  in  its  membership  John  Hone,  John 
Duer,  Philip  Hone,  Gulian  C.  Verplanck,  and  Peter  A.  Jay, 
assembled  on  June  23,  1829,  and  produced  a  charter  which 
was  submitted  to  the  people  of  the  city  at  a  special  election 
and  approved  by  them.  This  municipal  organic  law  passed 
the  legislature  unchanged.^  When  it  is  contrasted  with 
modern  city  charters,  its  brevity  is  striking ;  it  contains  only 
twenty-six  sections,  many  of  which  are  short.  It  vested  the 
^'legislative  power"  in  a  bicameral  council — the  board  of 
aldermen  and  the  board  of  assistant  aldermen — fixed  the 
date  for  the  election  of  charter  officers  as  the  second  Tues- 
day of  April,  and  the  date  of  their  entry  into  office  as  the 
second  Tuesday  of  May,  1830;  and  provided  that  the  execu- 
tive business  of  the  corporation  should  be  performed  by 
departments  organized  and  appointed  by  the  common  coun- 
cil.   It  retained  intact  all  parts  of  the  time-honored  colonial 


•Chapter  122  of  the  Laws  of  1830. 


STAT£   OF   NEW   YORK  ^$1 

charters  not  inconsistent  with  its  express  provisions.  Its 
legislature  of  two  houses  was  quite  naturally  modeled  after 
the  Federal  Congress,  and  the  State  senate  and  assembly, 
and  the  mayor's  qualified  veto  was  similar  to  the  veto  given 
the  governor  under  the  constitution  of  1821.  The  conven- 
tion favored  an  amendment  to  the  constitution  under  which 
the  mayor  should  be  elected  by  the  voters  of  the  city  instead 
of  by  the  common  council,  as  the  constitution  then  required, 
but  his  election  by  citizens  was  not  brought  about  until  the 
constitutional  amendment  of  1834  took  effect. 

The  charter  of  1830  failed  to  realize  the  expectations  of 
its  framers.  Its  chief  defect  was  that  it  clothed  the  common 
council  with  executive  power — a  power  which  in  its  ability 
to  select  heads  of  departments  it  continued  to  enjoy  even 
after  the  mayor  came  to  be  elected  by  the  people,  in  1834. 
This  was  effected  through  the  provision  that  the  executive 
business  of  the  city  should  be  performed  by  distinct  depart- 
ments to  be  organized  and  appointed  by  the  council.  Thus, 
aldermen  and  assistants  were  able  through  their  committees 
and  departments  to  control  even  the  minutiae  of  adminis- 
tration, the  "very  name  of  'executive  committees,'  which 
these  officials  retained,  showing  how  little  they  confined 
themselves  to  legislative  functions."  *  The  executive  had 
only  a  shadow  of  authority;  he  could  recommend,  but  do 
little  more ;  nearly  all  substantial  power  was  centered  in  the 
council.  After  nineteen  years  this  evil  was  remedied,  but 
unhappily  there  followed  others  born  of  over-confidence  in 
the  wisdom  of  the  sovereign  people.  The  right  of  citizens 
to  frame  their  own  charter  through  delegates  of  their  own 
selection  was,  however,  again  expressly  recognized.  Pur- 
suant to  an  act  of  the  legislature  of  1846  ^  an  election  was 
held  in  the  city  on  the  first  Monday  of  June  of  that  year, 
at  which  were  chosen  delegates  to  a  county  convention  em- 


*  "History  of  New  York  City  Finances,"  by  Edward  Dana  Durand, 
page  60. 

°  Chapter  172,  Laws  of  1846. 


2S2  CONSTITUTIONAL   HISTORY 

powered  to  frame  a  new  charter  or  amend  the  existing  one. 
The  delegates  were  required  to  meet  on  the  first  Monday  of 
July,  and  to  complete  their  business  in  time  to  allow  the  sub- 
mission to  the  electors  of  the  city  and  county  of  New  York 
at  the  succeeding  November  election,  of  any  charter  or 
amendments  formulated  by  them.  Delegates  were  accord- 
ingly chosen,  and  the  city  convention  assembled  in  the  city 
almost  simultaneously  with  the  meeting  of  the  State  consti- 
tutional convention  at  the  capital.  The  new  charter  was  not 
approved  by  the  local  electorate,  partly  because  of  absorbing 
interest  in  the  Mexican  War,  and  partly  because  of  public 
pre-occupation  with  the  work  of  the  State  constitutional 
convention;  but  in  1849  the  legislature  amended  the  char- 
ter along  lines  proposed  by  the  city  Convention  of  1846. 
The  Democratic  sentiment  of  the  time  insisted  upon  the 
election  by  manhood  suffrage  not  only  of  the  mayor  and 
the  common  council,  but  also  of  the  heads  of  the  various 
executive  departments,  which  under  the  charter  of  1830  had 
been  controlled  by  committees  of  the  common  council.  The 
most  revolutionary  feature  of  the  legislation  of  1849  was 
the  creation  of  executive  departments,  the  heads  of  which 
were  to  be  elected  for  short  terms.  The  act  provided  that 
the  new  charter  should  be  submitted  for  approval  to  the 
electors  of  the  city  and  county  of  New  York  at  an  election 
to  be  held  on  the  second  Tuesday  of  April,  1849,  ^^^  that 
in  case  of  its  approval  by  a  majority  of  the  electors  it  should 
go  into  effect  on  June  first  of  that  year.  By  a  popular  vote 
the  new  charter  was  approved. 

The  charter  of  1849  was  almost  as  succinct  as  that  of 
1830.  It  vested  all  executive  power  in  the  mayor  and 
heads  of  departments,  and  forbade  the  common  council 
and  its  committees  from  exercising  executive  functions. 
The  executive  departments  were  single-headed,  with  the 
exception  of  the  Croton  Aqueduct  Board,  which  was  estab- 
lished on  May  2,  1834,  as  a  State  board  to  secure  a  supply 
of  water  for  the  city  from  the  Croton  region.     Contracts 


STATE   OF   NEW   YORK  253 

for  work  and  supplies  were  to  be  let  by  department  heads 
under  regulations  to  be  prescribed  by  the  common  council. 
The  charter  of  1830  was  expressly  repealed. 

The  change  in  city  government  effected  in  1849,  which 
was  approved  by  a  popular  vote  of  19,339  i^  favor  and  of 
only  1,478  against  it,  was  seemingly  not  inspired  by  party 
motives.  The  charter  of  1849  was  amended  in  1853,  but 
not  without  popular  approval,  for  the  act  containing  the 
proposed  amendments  required  the  submission  to  the  elec- 
torate of  the  question  whether  these  should  be  incorporated 
in  the  city's  organic  law.  The  alterations  made  in  1853 
grew  out  of  public  revolt  against  corruption  in  the  grant  of 
city  railway  franchises,  the  most  important  reform  of  this 
year  requiring  all  franchises,  as  well  as  all  leases  of  ferries, 
docks,  slips  and  piers,  to  be  offered  at  public  auction  to  the 
highest  bidder  giving  adequate  security. 

But  an  extraordinary  revolution  in  legislative  treatment 
of  the  city  was  to  be  witnessed  inside  of  four  years.  The 
slavery  question  had  assumed  portentous  prominence,  and 
the  conflict  which  Seward  in  1858  declared  to  be  irrepres- 
sible was  felt  to  be  impending.  The  Republican  party, 
which  controlled  the  State  government,  was  ardently  op- 
posed to  the  extension  of  the  South' s  peculiar  system  into 
the  new  territories  of  the  nation;  while  New  York  City, 
which  was  Democratic  by  a  large  majority,  contained  many 
sympathizers  with  extreme  pro-slavery  views.  Both  parties 
were  deeply  interested  in  success  in  the  coming  State  and 
national  elections;  the  city's  officials  did  not  command  the 
confidence  of  its  better  citizenship,  and,  in  the  tenseness  of 
feeling  and  prejudice.  Republicans  were  naturally  eager  to 
seize  any  tactical  advantage,  when  apparently  sound  rea- 
sons existed  for  curbing  the  power  of  a  Democratic  admin- 
istration. So  unsatisfactory  and  even  corrupt  had  been  the 
management  of  the  city's  affairs,  so  insecure  property  and 
even  life  within  its  borders,  that  the  Republican  State  gov- 
ernment felt  impelled  to  intervene.    Hope  of  party  advan- 


254  CONSTITUTIONAL    HISTORY 

tage  may  have  prompted  its  action,  but  its  legislation  had 
strong  backing  in  public  sentiment.  Nevertheless,  this  legis- 
lation was  not  carried  into  effect  without  tumult  and  blood- 
shed, nor  without  intelligent  opposition,  for  it  involved 
nearly  complete  subversion  of  the  principle  of  home  rule, 
until  then  almost  unbrokenly  acknowledged.  The  city  char- 
ter was  radically  altered;  the  election  of  all  department 
heads  except  the  corporation  counsel  and  the  comptroller 
was  taken  from  the  people  and  their  appointment  given  to 
the  mayor,  upon  confirmation  by  the  common  council;  the 
city  government  was  separated  from  the  county  government 
and  a  board  of  supervisors  created  to  levy  local  taxes,  can- 
vass the  vote,  and  perform  other  county  duties.^  For  the 
ward,  the  old  unit  of  an  aldermanic  election,  was  substituted 
an  arbitrary  district  so  gerrymandered  as  to  increase  the 
strength  of  the  Republicans  in  the  board  of  aldermen. 
Councilmen  were  to  be  elected  from  senatorial  districts. 
Charter  elections  were  to  take  place  on  the  first  Tuesday  in 
December.  Control  of  the  police  system  was  withdrawn 
from  the  city;  a  metropolitan  police  district,  in  imitation  of 
the  London  system,  was  established,  and  there  was  created 
a  police  board,  appointments  to  which  were  made  at  Albany. 
Later,  the  government  of  the  new  Central  Park  was  vested 
in  a  State  commission,  and  a  metropolitan  fire  district  and  a 
health  district  also  were  formed.  These  changes  in  the 
charter  in  effect  removed  the  administration  of  the  city's 
affairs  from  the  City  Hall  to  the  Capitol,  but  the  transfer 
of  power  was  not  accomplished  without  controversy  in  the 
courts,  and  the  case  of  the  People  v.  Draper  et  al.  (15  N.  Y., 
532)  became  a  notable  landmark  in  the  centralization  of  city 
government  at  the  capital. 

In  order  to  sustain  the  constitutionality  of  the  law,  the 
court  of  appeals  in  the  Draper  case  was  obliged  to  hold  that 
the  legislature  might  constitutionally  establish   new   civil 


See  Chapters  446,  569,  590,  Laws  of  1857. 


STATE   OF   NEW    YORK  255 

divisions  of  the  State  embracing  the  whole  or  parts  of  dif- 
ferent counties,  cities,  villages,  or  towns  for  general  pur- 
poses, permanent  or  temporary,  of  civil  government,  pro- 
vided the  divisions  recognized  by  the  constitution  were  not 
abolished  nor  their  capacity  impaired  to  subserve  the  pur- 
poses and  arrangements  to  which  they  were  made  instru- 
mental by  the  constitution.  Chief  Judge  Denio,  author  of 
the  prevailing  opinion,  admitted  that  the  legislature  could 
not  abolish  counties,  cities  or  towns,  since  these  were  in- 
dispensable subdivisions  of  the  State  government,  but  noth- 
ing in  the  constitution,  he  declared,  required  that  these  local 
divisions  should  always  possess  the  same  measure  of  ad- 
ministrative power.  Justice  Brown,  who  had  been  a  mem- 
ber of  the  State  Constitutional  Convention  of  1846,  cogently 
argued  for  the  minority  that  these  civil  divisions  of  the 
commonwealth  were  "coeval  with  the  government"  and 
that  they  were  as  much  beyond  the  pale  of  legislative  abro- 
gation as  though  their  destruction  had  expressly  been  pro- 
hibited. 

The  Albany  legislature  ruled  the  city  with  an  iron  hand 
for  a  number  of  years  after  1857.  It  not  only  levied  taxes 
within  the  city,  but  fixed  all  details  of  the  city  budget,  and 
made  minute  appropriations  of  the  city's  money.  Reaction 
set  in  with  the  election  to  the  governorship  of  John  T. 
Hoffman,  who,  in  his  first  message  to  the  legislature  in 
1869,  denounced  the  system  of  government  of  the  city  by 
legislative  commissions,  and  recommended  its  repeal.  The 
plain  spirit  of  the  constitution,  he  contended,  had  been  vio- 
lated in  the  creation  by  the  legislature  of  geographical  di- 
visions not  recognized  in  the  organic  law,  and,  while  by  a 
bare  majority  the  highest  judicial  tribunal  had  upheld  the 
legislation,  he  charged  it  "to  have  been  a  partisan  con- 
trivance for  power,  and,  if  not  an  open  violation,  at  least 
an  evasion  of  the  constitution,"  whose  effect  was  "to  give 
to  the  political  minority  in  these  districts  the  power  of  gov- 
erning the  majority." 


256  CONSTITUTIONAL    HISTORY 

The  city  charter  of  1870,  commonly  known  as  the 
Tweed  charter,  was  fundamentally  sound  in  rescuing  the 
city  from  government  at  the  State  capital,  although  the 
powers  restored  to  the  people  were  abused  by  the  officials 
to  whom  they  were  entrusted.'^  In  this  year  the  Democrats 
had  a  majority  in  the  legislature  and  a  governor  of  their 
own  faith  at  Albany.  By  the  charter,  aldermen  were  to  be 
elected  upon  a  general  ticket  through  the  city  at  large,  and 


'  It  is  no  condemnation  of  the  home-rule  theory  that  this  charter, 
quite  generally  approved  by  the  press  of  the  time,  should  have  been  fol- 
lowed by  the  scandals  of  the  Tweed  ring.  It  was  not  the  charter,  but 
other  legislation  secured  by  the  ring,  which  enabled  it  to  enrich  its 
members  beyond  the  dreams  of  avarice,  and  increased  the  city  debt 
in  a  few  years  to  $50,000,000.  Coincidently  with  the  procurement  of 
the  charter,  the  ring  obtained  the  passage  of  legislation  abolishing  the 
county  board  of  supervisors  established  in  1857,  and  transferring  to 
the  mayor,  recorder  and  aldermen  the  powers  of  that  odious  bi-partisan 
board.  Legislation  was  obtained  authorizing  the  mayor,  comptroller, 
and  president  of  the  board  of  supervisors  (a  position  occupied  by 
Tweed)  to  audit  the  county  liabilities  and  issue  revenue  bonds  for 
their  payment — a  process  by  which  $6,413,737  of  county  liabilities,  in 
large  measure  fictitious,  was  audited  by  a  board  which  never  met ;  and 
new  bonds  were  accordingly  issued.  There  was  procured  also  legisla- 
tion for  the  consolidation  of  the  city  and  county  debt,  and  the  refund- 
ing of  this  debt  by  the  issue  of  thirty-year  stock,  and  further  legisla- 
tion by  which  the  money  spenders  were  placed  in  the  new  board  of 
estimate  and  apportionment;  also  laws  changing  the  grade  of  Ninth 
avenue;  establishing  a  board  of  street  openings;  and  authorizing  the 
widening  of  Broadway,  Sixth  avenue.  Seventh  avenue,  St.  Nicholas 
avenue,  and  the  repaving  of  numerous  streets.  By  some  of  this  legis- 
lation unprecedented  powers  were  conferred  upon  the  commissioner 
of  public  works.  Improvements  in  the  water-supply  system  received 
legislative  sanction,  and  unnecessary  mains  were  ordered  to  be  laid. 
The  gigantic  operations  of  the  ring  were  not  the  fruit  of  the  new 
charter,  but  the  direct  consequences  of  the  evil  habit,  begun  in  1857, 
of  constant  legislative  intervention  in  city  affairs.  It  was  the  numer- 
ous, complicated  and  sometimes  overlapping  measures  passed  in  1870 
and  1871,  which  enabled  the  ring  to  acquire  apparently  absolute  con- 
trol of  the  city  government  and  its  finances ;  and  all  this  legislation,  by 
which  the  ring  attained  the  height  of  its  power,  was,  as  was  clearly 
revealed  in  testimony  at  the  time,  the  result  of  legislative  corruption. 
The  Tweed  regime,  therefore,  is  to  be  attributed  to  the  policy  of  legis- 
lative interference  with  the  city,  and  not  to  the  evils  of  the  Tweed 
charter. 


STATE   OF    NEW   YORK  257 

assistant  aldermen  were  to  be  chosen  in  assembly  districts ; 
all  heads  of  departments  other  than  finance  and  law  were  to 
be  appointed  by  the  mayor,  and  confirmation  by  the  com- 
mon council  was  dispensed  with ;  the  December  city  elec- 
tions were  abandoned,  and  all  city  elections  thereafter  di- 
rected to  be  held  in  November.  The  county  board  of  super- 
visors was  abolished,  important  tax  legislation  enacted,  and 
an  entirely  new  board  called  the  Board  of  Estimate  and 
Apportionment  ^  created,  to  which  the  department  heads 
were  required  to  submit  their  annual  estimates  and  which 
was  charged  with  the  duty  of  making  up  the  city  budget; 
while  to  meet  appropriations  thus  authorized  the  common 
council  was  permitted  to  levy  taxes.  Thus  there  was  re- 
stored to  the  city  the  power  of  levying  taxes  which  it 
originally  enjoyed  in  a  limited  degree,  and  of  which  for 
three  generations  it  had  been  deprived;  and  the  ability  of 
the  legislature  to  delegate  this  authority  was  subsequently 
upheld  in  the  courts.^ 

The  evils  of  ring  misrule  led  in  1872  to  the  draft  by  the 
Committee  of  Seventy  of  a  charter  which  was  passed  by 
the  legislature,  but  was  vetoed  by  Governor  Hoffman  mainly 
upon  the  ground  that  the  principle  of  minority  representa- 
tion which  the  charter  proposed  to  employ  in  the  election  of 
certain  city  officers  was  unconstitutional.  A  cardinal  de- 
fect in  the  charter,  as  the  governor  said,  was  its  creation 
of  a  mayor  without  real  executive  responsibility;  it  lodged 
the  power  of  appointment  in  the  common  council.  In  th6 
succeeding  year  (1873)  there  was  passed  a  new  charter — a 
species  of  compromise  between  the  Tweed  charter  of  1870 
and  the  charter  drafted  by  the  Committee  of  Seventy  ^^ — 

"This  board  has  since  played  a  most  important  part  in  city  gov- 
ernment; its  powers  have  from  time  to  time  been  enlarged,  and  it 
may  ultimately  become  the  vehicle  for  the  evolution  from  the  mayoral 
system  into  the  commission  system  of  government. 

"Townsend  v.  Mayor,  etc.,  of  N.  Y.,  16  Hun.  362. 

"Chapter  335,  Laws  of  1873. 


258  CONSTITUTIONAL    HISTORY 

which  with  few  changes  remained  in  operation  until  the 
creation  of  Greater  New  York  in  1897. 

In  the  period  following  the  Civil  War,  attention  became 
concentrated  upon  the  evils  of  city  government,  and  public 
feeling  in  New  York  City  rose  to  fever  height  after  the 
disclosures  of  1871.  The  long  era  of  misgovernment  had 
culminated  in  the  criminal  peculations  of  the  Tweed  ring, 
but  misgovernment  was  not  confined  to  the  metropolis  alone. 
The  speculative  spirit  engendered  during  the  Rebellion,  and 
the  lowered  moral  standards  usually  consequent  upon  a  pe- 
riod of  war,  had  led  to  general  corruption  in  the  affairs  of 
cities,  while  the  concentration  of  public  attention  upon  na- 
tional questions  had  secured  municipal  wrongdoers  a  cer- 
tain degree  of  immunity.  The  dangers  to  city  government 
from  the  naturalization  and  admission  to  citizenship  of 
hordes  of  ignorant  immigrants  from  Europe,  and  the  ad- 
vantage that  such  numbers  would  give  to  corrupt  leader- 
ship, were  dimly  appreciated  as  far  back  as  1846.  In  the 
State  convention  of  that  year,  Henry  C.  Murphy  earnestly 
advocated  the  passage  of  a  constitutional  requirement  for 
the  incorporation  of  cities  under  general  laws.  Murphy's 
views  met  with  little  favor  in  the  convention.  In  the  Con- 
vention of  1867  city  misgovernment  and  its  causes  and 
remedies  aroused  warm  debate.  The  legislation  placing  the 
police  under  State  control  was  bitterly  attacked  and  strongly 
defended.  Martin  I.  Townsend  with  much  justice  declared 
that  but  for  the  efficiency  of  the  metropolitan  police  the  draft 
riot  of  July,  1863,  might  have  resulted  in  revolution.  The 
Democrats  of  the  convention  urged  the  abrogation  of  all 
legislative  commissions,  but  failed  to  carry  a  majority  of 
the  convention  with  them.  The  committee  on  cities  was 
divided  in  sentiment;  while  nearly  all  favored  the  passage 
of  general  legislation  for  the  incorporation  of  cities,  a 
minority  under  the  leadership  of  ex-Mayor  Opdyke  urged 
as  a  remedy  some  restriction  upon  the  suffrage  in  the 
^election  of  officials  having  charge  of  the  expenditure  of 


STATE    OF    NEW    YORK  259 

city  moneys.  The  convention  decided  to  report  amendments 
to  article  VII  of  the  constitution,  one  of  these  amendments 
deHmiting  the  powers  of  boards  of  supervisors,  another  de- 
fining the  powers  of  mayors,  and  a  third  prohibiting  the 
enactment  of  special  laws  for  the  organization  and  govern- 
ment of  municipalities,  save  where  the  object  to  be  attained 
could  not  in  the  judgment  of  the  legislature  be  effected  by 
general  legislation. 

The  constitutional  commission  of  1872,  which  was  a 
much  smaller  body  than  the  Convention  of  1867,  but  made 
up  equally  from  the  two  political  parties,  approved  a  con- 
stitutional amendment  in  the  shape  of  a  municipal  article 
containing  five  sections.  Section  i  provided  for  the  choice 
by  the  electors  of  every  city  in  this  State  of  a  mayor  as  the 
chief  executive  officer,  charged  with  power  to  nominate,  and 
with  the  consent  of  the  board  of  aldermen  to  appoint,  the 
heads  of  executive  departments,  and  with  power  to  investi- 
gate their  acts  and  all  books  and  documents  in  their  offices, 
and  to  examine  them  and  their  subordinates  under  oath. 
He  was  empowered  also  to  suspend  or  remove  the  heads  of 
departments  for  misconduct  in  office  or  neglect  of  duty, 
but  was  obliged  to  specify  the  misconduct  or  neglect  in  the 
order  of  suspension  or  removal.  He  was  given  a  power  of 
veto  over  acts  of  boards  of  aldermen  like  that  possessed  by 
the  governor  over  acts  of  the  legislature;  and  boards  of 
aldermen  were  invested  with  power  of  reconsideration  and 
enactment,  after  a  mayor's  veto,  analogous  to  that  possessed 
by  the  legislature  over  bills  vetoed  by  the  governor.  Sec- 
tion 2  provided  that  heads  of  departments  might  appoint 
and  remove  their  subordinate  officers. 

Section  3  is  as  follows : 

"The  local  government  of  every  incorporated  city  shall  be  vested 
in  a  mayor  and  a  board  of  aldermen.  Aldermen  shall  be  chosen  by 
districts  or  wards,  not  more  than  three  from  each  district  or  ward; 
and  the  whole  number  of  aldermen  shall  not  be  less  than  one  to  every 
fifty  thousand  of  population.  There  shall  also  be  a  board  of  audit  of 
PQt  less  than  five  nor  more  than  eleven  members.    They  shall  be  elec- 


26o  CONSTITUTIONAL    HISTORY 

tors  of  the  city,  and  shall  be  chosen  by  general  ticket,  by  such  electors 
thereof  as  shall  have  paid,  individually,  in  the  year  previous  to  the 
election,  a  tax  on  property  officially  assessed  for  taxation  at  not  less 
than  two  hundred  and  fifty  dollars.  The  assent  of  such  board  of 
audit,  by  the  vote  of  a  majority  of  all  members  elected  thereto,  shall 
be  necessary  to  every  resolution,  ordinance  or  other  proceeding  of  the 
board  of  aldermen  involving  the  auditing  of  claims  and  accounts,  the 
expenditure  of  money,  the  contracting  of  debts  or  the  levying  of 
taxes  and  assessments;  and  the  board  of  audit  shall  be  clothed  with 
no  other  power." 

Section  4  is  as  follows : 

"The  government  of  every  city  shall  have,  within  its  own  boundary, 
exclusive  legislative  power  in  all  matters  relating  to  taxation  and  ex- 
penditure for  local  purposes,  the  care,  regulation  and  improvement  of 
its  streets,  avenues,  public  grounds  and  public  buildings,  of  its  supply 
and  distribution  of  water,  of  its  almshouse  and  its  other  charitable 
and  benevolent  institutions,  and  may  exercise  such  further  powers  as 
shall  be  conferred  by  law." 

Section  5  required  the  legislature  at  its  first  session 
after  the  adoption  of  the  new  article  to  enact  a  general  law 
for  the  government  of  cities  in  harmony  with  its  terms. 

The  municipal  article  framed  by  the  commission  of 
1872  was  not  accepted  by  the  legislature  to  which  it  was 
submitted,  nor  did  it  obtain  the  approval  of  any  subsequent 
legislature;  hence  the  people  were  never  called  upon  for 
their  opinion  of  its  merits  or  unwisdom. 

Under  a  general  law  for  the  creation  of  cities,  the  legis- 
lature might  escape  "the  swarms  of  local  bills  forced  upon 
its  attention  at  every  session,"  and  the  constant  alteration 
of  city  charters  might  cease,  with  gain  to  home  rule;  yet 
despite  these  advantages,  a  stage  in  which  a  satisfactory 
general  law  for  cities  of  the  first  class  might  be  framed  had 
not  then  been  reached.  The  conservatism  shown  in  legis- 
lative disinclination  to  adopt  this  article  was  wise.  It  would 
have  been  a  mistake  for  the  legislature  and  the  people  to 
have  accepted  it,  even  had  it  been  rid  of  the  somewhat  un- 
democratic provision  urged  by  Opdyke  both  in  1867  and 
1872,  and  subsequently  indorsed  by  the  Tilden  commission 
of  1875, — that  city  officers  charged  with  the  spending  of 


STATE   OF   NEW   YORK  261 

city  moneys  should  be  chosen  only  by  owners  of  property. 
The  minimum  valuation  suggested  by  Opdyke  in  1867  was 
$1,000;  in  1872  he  reduced  it  to  $250. 

The  municipal  article  drafted  by  Opdyke,  in  providing 
for  the  choice  of  a  mayor  as  the  chief  executive  officer  of 
every  city  of  the  State,  covered  the  same  subject  as  the 
constitutional  amendment  of  1839,  and  was  unnecessary. 
The  idea  of  fettering  the  mayor's  power  of  nominating  or 
removing  heads  of  executive  departments  was  erroneous. 
In  several  of  his  annual  messages,  Governor  Hoffman  had 
advanced  beyond  this  now  generally  discredited  theory  of 
limited  mayoral  responsibility,  for  he  urged  that  the  mayor 
should  have  the  amplest  power  of  appointment  and  unre- 
stricted power  of  removal,  and  such  has  been  the  trend  of 
recent  legislation  for  the  cities  of  the  State.  In  his  first 
message,  Hoffman  affirmed  that  good  government  could  not 
be  secured  to  any  great  city  unless  it  had  one  responsible 
head,  vested  with  all  executive  power,  to  whom,  as  the 
elected  representative  of  the  people,  all  departments  charged 
with  executive  duties  should  be  directly  and  summarily  re- 
sponsible and  accountable.^^  In  his  second  message,  he 
said :  "I  believe  this  to  be  the  very  foundation  stone  of  a 
good  structure  of  municipal  government."  In  his  message 
of  January  2,  1872,  he  advocated  ''fixing  the  responsibility 
for  good  administration  upon  the  mayor;  and  to  this  end 
giving  him  full  power  of  appointment  and  removal  of  all 
heads  of  departments  except  the  police."  The  article  advo- 
cated by  the  commission  of  1872  would  have  enabled  heads 
of  departments  to  appoint  and  remove  their  subordinate 
officers.  Had  this  been  ratified,  the  Civil  Service  Law  of 
1883  in  some  of  its  aspects  might  have  been  unconstitu- 
tional, and  reform  of  the  civil  service  perhaps  belated  until 
its  incorporation  into  the  constitution  of  1895.  The  scheme 
to  limit  the  franchise  was  chimerical,  and  would  alone  have 
insured  the  defeat  of  the  article. 


Messages  of  Governor  Hoffman,  pp.  2^^  96. 


262  CONSTITUTIONAL    HISTORY 


.     CHAPTER   XIV 

TILDEN  COMMISSION ITS  ADVOCACY  OF  LIMITED  SUFFRAGE 

IN  CITIES SUMMARY  OF  ITS  PLAN  FOR  IMPROVING  CITY 

GOVERNMENT FAILURE  IN  LEGISLATURE CONVENTION 

OF     1894    DIVORCED    CITY    FROM    STATE    AND    NATIONAL 

ELECTIONS ITS     NEW     MUNICIPAL    ARTICLE^ GENERAL 

AND    SPECIAL    CITY    LAWS RECENT    ENACTMENTS    EN- 
LARGING POWERS  OF   CITIES DUAL   FUNCTIONS  OF  THE 

CITY CONCLUDING  CONSIDERATIONS OUTLOOK  FOR  FU- 
TURE HOPEFUL. 

Municipal  reform,  although  a  prominent  feature  of  the 
work  of  the  constitutional  commission  of  1872,  had  suf- 
fered a  seeming  failure  in  the  refusal  of  the  legislature  to 
submit  the  proposed  municipal  article  to  the  people  in 
1874;  but  the  subject  was  soon  to  be  urged  by  a  statesman 
of  large  theoretical  and  practical  experience,  who  had  been 
a  member  of  the  constitutional  conventions  of  1846  and 
1867 — ^Samuel  J.  Tilden.  After  his  election  to  the  chief 
magistracy  of  the  State,  he  submitted  to  the  legislature  a 
special  message  relating  to  cities.  It  stated  that  the  Con- 
vention of  1846  had  accomplished  nothing  for  municipal 
reform  beyond  adopting  on  the  last  day  of  its  session  a 
provision  devolving  upon  the  legislature  the  duty  of  enact- 
ing laws  to  protect  municipalities  against  excessive  taxation 
and  financial  evils  similar  to  those  which,  prior  to  1846,  had 
afflicted  the  State  at  large.  After  alluding  to  the  fact  that, 
far  from  discharging  this  constitutional  obligation,  the  legis- 
latures had  in  reality  acted  in  direct  opposition  to  their  duty, 
and  after  adverting  to  the  alarming  increase  in  the  debts  of 


STATE   OF   NEW   YORK  263 

some  of  the  leading  cities  in  the  State,  the  governor  sug- 
gested the  appointment  of  a  commission  to  frame  some  per- 
manent uniform  plan  for  the  government  of  the  cities  of 
the  State.  The  message  sought  to  indicate  the  true  sphere 
of  independent  city  authority.  *Tn  the  most  completely  de- 
veloped municipality,"  "it  embraced  the  care  of  police, 
health,  schools,  street  cleaning,  prevention  of  fires,  supplying 
water  and  gas,  and  similar  matters,  most  conveniently  at- 
tended to  in  partnership  by  persons  living  together  in  a 
dense  community,  and  the  expenditure  and  taxation  neces- 
sary for  those  objects.  The  rights  of  persons,  property,  and 
the  judicial  systems  instituted  for  their  preservation — gen- 
eral legislation — government,  in  its  proper  sense;  these  are 
vast  domains  which  the  functions  of  municipal  corporations 
and  municipal  officers  do  not  touch." 

The  message  was  presented  to  the  legislature  on  May 
22,  1875.  On  the  same  day  a  concurrent  resolution  was 
adopted  by  the  two  houses,  authorizing  the  governor  to  ap- 
point a  commission,  to  consist  of  not  more  than  twelve 
persons,  "whose  duty  it  should  be  to  consider  the  subject 
referred  to  in  said  message,  to  devise  a  plan  for  the  govern- 
ment of  cities,  and  to  report  the  same  to  the  next  legisla- 
ture." The  members  of  the  commission,  selected  equally 
from  the  two  great  political  parties,  were  William  M. 
Evarts,  Samuel  Hand,  Edwin  L.  Godkin,  Edward  Cooper, 
Martin  B.  Anderson,  John  A.  Lott,  Oswald  Ottendorfer, 
William  Allen  Butler,  Simon  Sterne,  Joshua  M.  Van  Cott, 
Henry  F.  Dimock,  and  James  C.  Carter,  all  of  whom  save 
President  Anderson  of  Rochester  University  accepted  the 
appointment.  With  the  exception  of  Ottendorfer,  Godkin, 
Cooper,  and  Dimock,  all  were  publicists  and  lawyers  of 
eminence,  and  the  high  qualifications  of  Godkin,  for  years 
editor  of  the  Nation^  and  of  Ottendorfer,  editor  of  the 
Stoats  Zeitimg,  were  generally  recognized.  Cooper  had 
been  mayor  of  New  York  City  between  1879  and  1881. 
The  commission  organized  immediately  after  its  appoint- 


264  CONSTITUTIONAL    HISTORY 

ment.  At  its  first  meeting,  held  December  15,  1875,  Evarts 
was  elected  chairman.  The  magnitude  of  its  task  precluded 
report  to  the  legislature  of  1876,  and  the  legislature  of  that 
year  therefore  authorized  the  presentation  of  the  report  to 
the  session  of  1877. 

The  report  submitted  by  the  commission  March  6,  1877, 
is  a  valuable  contribution  to  the  subject  of  municipal  re- 
form. According  to  Mr.  Bryce,  it  may  be  said  to  have 
become  classical.  Yet  in  some  respects  its  views  were  of 
questionable  wisdom,  and  few  of  its  suggestions  have  yet 
been  embodied  in  the  constitution.  According  to  the  diag- 
nosis of  the  commission,  the  salient  features  of  city  misgov- 
ernment  were  the  existence  of  incompetent  and  unfaithful 
governing  boards  and  officers,  the  introduction  of  State  and 
national  politics  into  municipal  affairs,  and  the  assumption 
by  the  legislature  of  direct  control  of  local  matters.  Con- 
cerning the  fearful  burden  of  debt  that  corrupt  officials  had 
imposed  upon  the  City  of  New  York  and  the  poverty  of 
return  for  prodigious  expenditures,  the  commission  de- 
clared the  outlay  "sufficient  for  the  construction  of  all  the 
public  works  of  a  great  metropolis  for  a  century  to  come, 
and  to  have  adorned  it  besides  with  the  splendors  of  archi- 
tecture and  art."  The  cure  was  to  be  found  in  the  elimini- 
nation  of  these  evils.  The  commission  dismissed  as  inade- 
quate remedies  dealing  with  the  symptoms  rather  than  the 
disease,  and  asserted  that  the  work  of  amendment  should 
begin  at  the  very  foundation  of  the  structure.  As  the 
Evarts  report  sonorously  phrased  it,  the  fundamental  ques- 
tion was  whether  ''the  general  application  of  universal  suf- 
frage in  the  election  of  the  local  guardians  and  trustees  of 
the  financial  interests  of  public  corporations  was  in  accord- 
ance with  sound  principle."  The  commission  answered  that 
it  was  not, — that  the  assumption  was  a  fallacy,  and  that 
"the  choice  of  the  local  guardians  and  trustees  of  the  finan- 
cial concerns  of  cities  should  be  lodged  with  the  taxpayers." 

The  reasons  for  its  conclusion,  however  ably  presented, 


STATE   OF   NEW   YORK  265 

seem  unsatisfactory.  They  are  like  an  echo  from  the  dis- 
tant past  of  the  State,  when  property  holders  alone  were 
deemed  competent  to  exercise  the  elective  franchise.  They 
sound  a  note  of  distrust  of  democracy,  since  it  fails  at  the 
very  core  of  things — in  local  administration.  Because  all 
voters  participate  in  elections  for  city  officers,  it  had  come, 
said  the  commission,  "to  be  a  common  belief  that  the  ques- 
tion of  submitting  the  local  government  of  cities  in  all  re- 
spects to  the  full  operation  of  universal  suffrage  had,  after 
the  fullest  consideration  of  the  legislature  and  people  of  the 
State,  been  deliberately  adopted."  This  was  affirmed  to  be 
an  error,  the  correction  of  which  was  of  primary  impor- 
tance. The  contrary  was  declared  to  be  the  policy  of  the 
State  in  respect  to  the  financial  concerns  of  its  political 
subdivisions.  In  the  establishment  of  the  governments  of 
villages,  the  legislature  as  early  as  1847  had  determined  to 
entrust  to  taxpayers  alone  the  control  of  financial  concerns. 
*'The  village  executive  officers,  the  board  of  trustees,  the 
local  legislature  of  the  village  are  elected  by  voters  pos- 
sessing the  ordinary  qualifications ;  but  the  vote  of  the  tax- 
paying  electors  is  with  certain  exceptions  requisite  to  con- 
fer the  authority  to  raise  money  by  taxation."  The  general 
village  incorporation  act  of  1870  reaffirmed  and  adopted  the 
same  principle  of  discrimination  in  the  exercise  of  the  suf- 
frage, giving  the  election  of  officers  to  electors  generally, 
but  committing  questions  of  expenditure,  with  the  excep- 
tion of  small  amounts  for  ordinary  purposes,  to  taxpayers 
alone.  Many  cities  of  the  State  grew  out  of  village  organ- 
izations and  their  charters  usually  contained  the  same  dis- 
crimination. That  this  policy  had  not  been  applied  to  the 
larger  cities  was  declared  to  be  "an  anomaly,"  "an  acci- 
dent," not  the  result  of  deliberation,  as  the  lodgment  of 
voting  power  with  taxpayers  in  villages  had  antedated  the 
constitution  of  1846,  and  in  many  instances  also  the  year 
1826,  when  property  qualifications  for  State  voters  were 
swept  away.    The  commission  said :  ^ 


266  CONSTITUTIONAL   HISTORY 

"The  establishment  of  a  representative  body,  to  be  chosen  by  tax- 
payers, is,  therefore,  the  proper  method  by  which  they  can  control 
the  question  of  expenditure  and  taxation  in  large  cities;  but  the  pro- 
visions of  the  constitution,  declaring  in  effect  that  all  elective  officers 
are  to  be  chosen  by  universal  suffrage,  stands  in  the  way  of  such  a 
procedure.  The  commission  created  in  1872  for  the  amendment  of  the 
constitution  perceived  the  anomaly  we  have  pointed  out  and  the  ne- 
cessity for  the  creation  in  large  cities  of  a  board  representative  of 
taxpayers  under  whose  guardianship  the  prime  matters  of  debt  and 
taxation  should  be  placed,  and  recommended  an  amendment  of  the 
constitution  designed  to  remedy  the  evil.  *  *  *  'p^g  measure  we 
recommend  is  not  in  opposition  to  the  principle  of  general  suffrage 
but  in  support  of  it — as  much  so  as  if  the  sole  duty  of  this  commis- 
sion had  been  to  consider  how  that  principle  could  be  best  preserved 
and  perpetuated.  No  surer  method  could  be  devised  to  bring  the 
principle  of  universal  suffrage  into  discredit,  and  prepare  the  way  for 
its  overthrow,  than  to  pervert  it  to  a  use  for  which  it  was  never  in- 
tended and  subject  it  to  a  service  which  it  is  incapable  of  performing." 

The  practical  difficulty  of  securing  a  constitutional 
amendment  restricting  the  suffrage  is  almost  insuperable, 
for  as  Kent  said  in  the  Convention  of  1822,  "there  is  no 
retrograde  movement  in  the  rear  of  democracy,"  yet  this 
seems  not  to  have  weighed  with  the  Tilden  commission. 
From  the  standpoint  of  fairness  or  even  of  expediency,  such 
a  restriction  as  it  proposed  could  hardly  have  been  justified. 
Taxpayers  and  rent  payers  are  not  the  only  classes  entitled 
to  share  in  government.  The  people  who  live  in  a  city,  who 
from  choice  or  necessity  make  it  their  home,  however  in- 
finitesimal seem  their  contributions  to  the  support  of  admin- 
istration, are  vitally  interested  in  its  concerns,  and  have  the 
same  right  as  their  wealthier  neighbors  to  be  consulted 
about  its  expenditures.  It  would  be  difficult  to  say  who 
should  form  the  favored  class  of  voters,  for  taxation  is  of- 
ten indirect,  and  its  incidence  uncertain.  Who  do,  and  who 
do  not,  pay  taxes  is  not  easy  to  determine.  Mere  physical 
numbers  cause  higher  assessed  and  rental  values  in  different 
localities,  and  those  whose  presence  aids  in  bringing  others 
within  the  favored  class  may  not  fairly  be  excluded  from  it. 

The  policy  in  the  long  run  might,  as  has  often  been  said, 
prove  detrimental  to  public  welfare  by  checking  growth  in 


STATE   OF   NEW   YORK  267 

civic  knowledge  and  devotion  on  the  part  of  non-voters, 
who  upon  the  plan  proposed  would  still  constitute  the  great 
mass  of  the  citizenship,  although  without  any  right  to  par- 
ticipate in  the  city  government.  Mill,  who  would  have  tax- 
payers alone  elect  the  assembly  that  is  to  vote  the  taxes,  has 
glowingly  portrayed  the  great  benefit  in  education  of  the 
intelligence  and  sentiments  that  the  ordinary  voter  derives 
from  the  use  of  the  ballot.  Until  tax  laws  are  so  amended 
as  to  make  taxation  uniform,  owners  of  property  not  of  a 
taxable  nature  would  be  excluded  from  the  franchise  equally 
with  those  who  own  none  at  all;  and  the  application  of  such 
a  test  in  the  use  of  the  ballot  would  greatly  complicate  pres- 
ent cumbrous  election  machinery.  Any  limitation  of  suf- 
frage might  result  in  the  exclusion  from  office  of  all  not 
possessed  of  the  requisite  property  to  make  them  voters, 
whatever  their  other  qualifications.  Arguments  drawn  from 
the  partial  exclusion  from  the  suffrage  of  the  non-taxpaying 
element  in  villages,  with  their  simpler  life,  are  hardly  anal- 
ogies, for  the  city  touches  the  welfare  of  its  inhabitants  at  a 
thousand  points;  its  mighty  industries  compel  their  pres- 
ence, yet  upon  the  commission's  plan  of  limiting  the  fran- 
chise they  would  be  powerless  to  better  evil  conditions  from 
which  they  would  often  be  the  chief  sufferers. 

The  plan  of  the  commission  for  the  improvement  of  city 
government  may  briefly  be  summarized :  In  every  city  there 
should  be  a  single  elective  board  of  aldermen,  an  elective 
mayor  clothed  with  the  right  to  appoint  department  chiefs 
except  the  heads  of  the  department  of  law  and  of  finance, 
and  with  a  qualified  power  of  removal,  reviewable  by  the 
governor.  A  Board  of  Finance — corresponding  in  func- 
tion with  the  present  board  of  estimate  and  apportionment 
in  New  York  City — should  be  elected  by  taxpayers  and  rent 
payers,  certain  minima  of  taxes  and  rents  being  established 
in  order  to  qualify  voters  in  different  classes  of  cities.  All 
estimates  for  annual  expenditures  should  be  made  by  this 
board,  subject  to  the  mayor's  approval,  the  estimates  stat- 


268  CONSTITUTIONAL   HISTORY 

ing  separately  the  amount  of  moneys  in  the  treasury  or 
receivable  for  city  purposes  and  the  amount  required  by 
taxation.  No  debt  or  liability  should  be  created  in  the  ab- 
sence of  a  prior  appropriation  therefor.  Local  improve- 
ments falling  altogether  upon  the  city  at  large  should  not 
be  undertaken  without  the  consent  of  two-thirds  of  all  the 
members  elected  to  each  of  the  two  houses.  No  improve- 
ment charged  exclusively  upon  property  owners  should  be 
initiated  without  a  two-thirds  vote  of  the  board  of  alder- 
men, and  the  approval  by  a  majority  in  interest  of  the  land 
owners  within  the  contemplated  assessment  district.  No 
part  of  the  cost  should  be  paid  by  the  city  except  with  the 
approval  of  two-thirds  of  both  houses  and  the  consent  of 
the  majority  in  interest  of  the  property  owners  within  the 
proposed  assessment  district.  Municipal  borrowing  power 
should  be  restricted  and  legislative  assent  to  debt-creation 
required.  Sinking  funds  should  be  created  and  ten  per  cent, 
amortization  instalments  raised  by  annual  taxation. ^ 

To  liberate  cities  from  legislative  control,  the  commis- 
sion proposed  the  following  provision  for  the  organic  law : 

"Sec.  8.  The  Legislature  shall  itself  have  no  power  to  pass  any 
law  for  the  opening,  making,  paving,  lighting,  or  otherwise  improving 
or  maintaining  streets,  avenues,  parks  or  places,  docks  or  wharves, 
or  for  any  other  local  work,  or  improvement  in  or  for  a  city  but  all 
authority  necessary  for  such  purposes  shall  be  by  law  conferred  on 
the  city  government;  nor  shall  the  Legislature  impose  any  charge  on 
any  city  or  civil  division  of  the  State  containing  a  city,  except  by  a 
vote  of  two-thirds  of  all  the  members  elected  to  each  house." 

The  bestowal  upon  the  mayor  of  exclusive  power  of 
appointment  and  removal  would,  the  commission  thought, 
furnish  no  corrective  for  mal-administration.  It  would  be 
an  unprecedented  step  and  would  lodge  in  the  hands  of  a 
single  individual  the  disposition  of  a  revenue  larger  than 


*The  suggestions  of  the  commission  were  embodied  in  an 
article  known  as  Article  XVII.  The  article  contained  eleven  sections. 
It  may  be  found  in  the  Session  Laws  of  1877,  pp.  560-564. 


STATE   OF   NEW   YORK  269 

that  of  some  kingdoms.  Few  men  worthy  of  public  confi- 
dence would,  it  said,  accept  place  at  the  hands  of  a  master 
who  might  make  or  unmake  them  at  pleasure.  An  auto- 
cratic mayor  as  a  remedy  for  bad  government  has  been  de- 
clared by  Mr.  Bryce  to  be  of  the  "cure  or  kill"  order,  for 
"if  voters  are  apathetic  and  let  a  bad  man  slip  in,  all  may 
be  lost  till  the  next  election."  Yet  the  principle  of  broad 
mayoral  responsibility  has  within  the  last  decade  or  two 
become  almost  generally  accepted.  In  six  of  the  larger 
cities  in  New  York  State,  in  Boston,  in  all  cities  in  Indiana, 
and  in  a  few  other  cities,  says  Professor  Fairlie  in  a  recent 
work,  the  mayor  has  been  clothed  with  the  sole  power  of 
appointing  the  chief  heads  of  departments,  and  in  the  same 
cities  with  the  addition  of  the  four  largest  in  Pennsylvania 
he  has  also  the  power  of  removing  at  any  time  appointive 
department  heads.  "Under  this  system  the  executive  au- 
thority and  responsibility  is  concentrated  in  the  mayor,  ex- 
cept for  a  few  officials  still  elected  by  popular  vote."  ^ 

Constitutional  limitations  forbidding  city  indebtedness 
in  excess  of  a  percentage  of  assessed  values  seem  to  have 
been  viewed  with  disfavor  by  the  commission,  because  the 
limitation  might  readily  be  evaded  by  raising  assessed 
values.  Yet  such  limitations  have  been  widely  adopted 
within  recent  years  and  have  proved  at  least  partial  safe- 
guards against  excessive  expenditure.  Its  remedy  for  the 
temptation  to  excessive  indebtedness  was  to  require  the  city 
to  appeal  to  the  legislature  for  permission  to  incur  the  debt, 
which  would  simply  have  forged  more  tightly  the  fetters  by 
which  the  city  is  held  in  bondage  by  the  legislature,  whereas 
absolute  emancipation  from  legislative  control  is  what  the 
city  requires.  The  commission's  idea  of  separating  city  and 
State  elections  was  excellent.  It  proposed,  however,  to  hold 
city  elections  in  March  or  April,  but  the  constitution  of 
1894  has  improved  upon  this.    Its  plan  to  take  away  legis- 


'  "Essays  on  Municipal  Administration,"  1908,  page  22. 


270  CONSTITUTIONAL    HISTORY 

lative  power  in  respect  of  certain  matters,  like  the  plan  out- 
lined by  Opdyke  in  1872,  was  not  sufficiently  far-reaching. 

The  suggestions  of  the  Tilden  commission  were  ap- 
proved by  the  legislature  of  1877,  but  were  not  acted  upon 
by  the  succeeding  legislature,  and  hence  were  never  submit- 
ted to  the  people.  It  seems  extraordinary  that  the  work  of 
such  a  commission  with  the  endorsement  of  one  legislature, 
even  if  it  had  not  also  the  influence  of  the  governor  behind 
it,*  could  have  successfully  been  "buried"  and  its  submission 
to  the  people  thus  prevented.  Few  things  better  illustrate 
the  notable  growth  of  public  opinion  in  the  last  generation, 
for  politicians  today  are  unable  to  resist  public  sentiment. 

The  movement  for  a  larger  degree  of  municipal  auton- 
omy was  felt  in  the  convention  of  1894,  but  despite  the 
elaborate  report  of  its  committee  on  cities  and  prolonged 
discussion,  continuing  sixteen  days,  the  outcome  was  not 
great.  Suggestions  to  the  convention  and  its  committee  on 
cities  for  improvement  of  municipal  government  were 
numerous  and  diverse.  On  July  27  the  committee  pre- 
sented to  the  convention  a  proposed  new  article  of  the 
constitution  "to  provide  home  rule  for  cities".  The  legis- 
lature was  to  be  required  to  pass  general  laws  for  the  incor- 
poration of  cities;  each  city  was  to  have  a  mayor  and  a 
common  council  of  one  or  more  chambers ;  members  of  the 
common  council  might  be  chosen  by  minority  representa- 
tion; city  officers  were  to  be  chosen  at  the  general  election 
in  an  odd  numbered  year;  cities  were  to  be  divided  into 
two  classes,  the  first  to  include  all  municipalities  having  a 
population  exceeding  50,000,  and  the  second  to  include  all 


*  Governor  Robinson,  who  had  been  a  member  of  the  constitu- 
tional commission  of  1872,  gave  only  a  tepid  approval  to  the  work  of 
the  Tilden  commission  in  his  annual  message  of  1878.  Amendments 
in  accordance  with  the  report  had,  he  said,  been  approved  by  the  last 
legislature  and  would  require  the  approval  of  the  existing  legislature 
before  they  could  be  submitted  to  the  people.  If,  he  added,  "yow  see 
fit  to  do  so  they  will  be  referred  to  the  people  for  action  at  the  next 
general  ^l^ctign  " 


STATE   OF   NEW   YORK  271 

other  cities ;  special  laws  relating  to  cities  were,  with  certain 
enumerated  exceptions,  to  be  prohibited ;  permissible  special 
laws  might  be  enacted  with  the  consent  of  the  mayor  or  the 
mayor  and  common  council  of  a  city  after  prior  notice  to 
the  city  of  the  terms  of  the  bill  and  upon  the  consent  of  the 
city  affected.  The  legislature  might  also  pass  such  laws  on 
the  consent  of  a  majority  of  city  electors  expressed  at  a 
general  or  a  special  election.  The  legislature  was  author- 
ized to  provide  for  the  consolidation  of  contiguous  cities 
and  the  enactment  of  a  new  charter  for  the  consolidated 
city — a  prevision  of  Greater  New  York. 

Divorce  of  city  from  State  and  national  elections  met 
with  no  objection,  but  the  proposal  to  forbid  special  legis- 
lation elicited  discussion,  with  the  result  that  the  article 
and  the  amendments  suggested  during  debate  were  referred 
to  the  committee  on  cities  for  further  consideration.  The 
committee  subsequently  reported  a  new  municipal  article 
containing  provision  for  city  elections  in  odd  numbered 
years,  bi-partisan  election  boards,  appointment  and  removal 
of  police  officers,  and  minority  representation  in  the  choice 
of  mayor  and  common  council.  It  also  reported  in  favor 
of  general  laws  for  the  incorporation  of  cities  and  their 
division  into  three  classes  upon  the  basis  of  population. 
This  report,  together  with  a  minority  report  favoring  an 
even  larger  grant  of  home  rule,  was  discussed  in  the  con- 
vention, and  on  August  30  the  convention  decided  to  recom- 
mit the  entire  article  to  its  committee. 

The  final  outcome,  which  was  a  compromise,  appears  in 
the  amended  constitution  (sections  2,  3,  Article  XII).  Sec- 
tion 2  provides  for  the  classification  of  cities  and  creates 
three  separate  classes ;  the  first  class  consisting  of  cities  with 
a  population  of  250,000  or  more;  the  second,  of  cities  with 
a  population  of  50,000  and  less  than  250,000;  the  third, 
of  all  other  cities.  Laws  relating  to  the  property,  affairs  or 
government  of  cities  may  be  general  or  special  city  laws. 
General  laws  relate  to  all  cities  of  one  class  or  more  than 


2/2  CONSTITUTIONAL   HISTORY 

one  class ;  special,  to  a  single  city  or  to  fewer  than  all  the 
cities  of  any  class.  No  bill  for  a  special  city  law  shall  be- 
come effective  unless  after  its  passage  by  both  houses  a  cer- 
tified copy  be  immediately  transmitted  to  the  mayor  of  the 
city  which  it  affects,  who  within  fifteen  days  thereafter  shall 
return  it  to  the  house  from  which  it  emanated,  or  if  the  leg- 
islative session  have  ended,  to  the  governor,  with  a  certifi- 
cate of  the  city's  acceptance  or  non-acceptance  of  the  bill. 
For  cities  of  the  first  class  the  mayor  acts  alone.  For  every 
other  city  the  mayor  and  the  city  legislature  act  concur- 
rently. Public  notice  of  a  hearing  upon  a  bill  is  to  be 
given  in  the  city  before  the  city  shall  act  thereon.  Where 
more  than  one  city  is  affected  by  the  measure,  every  city 
concerned  must  have  an  opportunity  to  act  upon  it.  All 
special  city  bills  returned  with  the  city's  acceptance  go  to 
the  governor  for  his  approval  or  veto.  If  a  bill  be  returned 
during  the  session  without  the  necessary  local  approval,  or 
if  fifteen  days  elapse  without  its  return,  it  may  again  be 
passed  by  both  branches  of  the  legislature,  and  then  becomes 
subject  to  the  governor's  action.  Wherever  a  special  city 
law  is  accepted  by  any  city,  the  title  is  to  be  followed  by 
the  words  "Accepted  by  the  City",  or  "Cities",  as  the  case 
may  be.  Every  such  bill  passed  without  city  approval  must, 
in  the  event  of  its  enactment  by  the  legislature,  show  in  the 
title  that  it  was  passed  without  the  acceptance  of  the  city  or 
cities,  as  the  case  may  be.  With  the  exception  of  elections 
to  fill  vacancies  all  elections  of  city  officers,  including  super- 
visors and  judicial  officers  of  inferior  local  courts  elected 
in  any  city  or  part  of  a  city,  and  of  county  officers  elected 
in  the  counties  of  New  York  and  Kings,  and  in  all  counties 
whose  boundaries  are  the  same  as  those  of  a  city,  are  to  be 
held  at  the  regular  fall  election  in  an  odd  numbered  year 
and  the  term  of  every  such  officer  is  to  expire  at  the  end  of 
an  odd  numbered  year.  To  prevent  an  interregnum  city 
officers  may,  in  case  of  vacancies,  be  elected  in  even  num- 
bered years.    The  section  is  inapplicable  to  any  city  of  the 


STATE   OF   NEW   YORK  273 

third  class  and  to  elections  of  all  judicial  officers  except 
judges  and  justices  of  inferior  local  courts. 

This  amendment  with  all  other  provisions  of  the  pro- 
posed constitution  was  ratified  by  the  people  in  the  fall  of 
1894.  But  no  clause  making  it  compulsory  upon  the  legis- 
lature to  pass  general  laws  for  the  incorporation  of  cities 
was  adopted.  Conditions  were  so  different  in  different 
cities  that  the  convention  felt  it  unwise  to  follow  the  course 
pursued  in  the  commission  of  1872  and  in  the  Tilden  com- 
mission in  1877.  It  therefore  abstained  from  framing  a 
general  municipal  law.  The  amendment  has  aroused  a 
degree  of  watchfulness  on  the  part  of  city  officials  and 
public-spirited  bodies,  and  has  led  to  the  frustration  of 
many  evil  measures.  But  the  legislature  can  too  easily 
override  local  disapproval,  as  it  needs  only  a  majority  vote 
to  enable  it  to  ignore  local  wishes.  The  benefit  attained  by 
the  amendment  is  negative  at  best ;  it  is  preventive  in  char- 
acter; it  assures  no  city  a  chance  to  initiate  constructive 
legislation.  The  true  remedy  is  to  give  each  city  control  of 
strictly  local  business  through  its  own  local  legislature  or 
governing  body,  subject,  however,  to  the  constitution  and 
the  general  laws  of  the  State. 

In  the  twenty  years  that  have  elapsed  since  the  conven- 
tion of  1894  was  held,  there  has  been  ample  time  to  decide 
whether  its  municipal  amendment  has  produced  the  benefit 
hoped  for  by  its  framers.  It  has  not  remedied  the  evils  of 
city  mal-administration.  City  debts  continue  to  grow  in 
disproportionate  ratio  to  population.  Legislative  interven- 
tion is  hardly,  if  at  all,  checked.  The  percentage  of  the 
whole  volume  of  legislation  to  local  legislation  seems  to 
have  remained  fairly  constant.  In  1898  the  percentage  of 
local  legislation  was  thirty-five  per  cent.  In  1904  it  was 
thirty-seven  per  cent.  In  1909  it  was  thirty-nine  per  cent. 
In  19 12  it  was  thirty- five  per  cent.  Several  times  since 
1897  has  the  legislature  proposed  to  revise  the  charter  of 
the  city  of  New  York.    In  1900  it  passed  a  revised  charter 


274  CONSTITUTIONAL    HISTORY 

over  the  city's  non-acceptance,  and  the  amendments  since 
made  to  that  instrument  have  run  into  the  thousands.  Its 
mandatory  appropriations  add  heavily  to  the  annual  cost 
of  the  city  government.  It  has  never  been  willing  to  allow 
the  city  to  fix  the  salaries  of  all  persons  whose  pay  comes 
exclusively  from  the  city  treasury.  What  is  true  as  to  the 
metropolis  is  measurably  true  as  to  other  cities.  Through 
charter  defects  cities  are  powerless  to  do  the  simplest  of 
municipal  acts — acts  plainly  local  in  character — without 
resort  to  the  legislative  power  at  Albany.  City  business  is 
thus  retarded,  the  cities  are  rendered  less  efficient  agencies 
for  the  satisfaction  of  purely  local  needs,  local  administra- 
tion is  crippled  and  its  expense  increased.  Moreover,  the 
legislature,  whose  business  is  to  legislate  in  the  interest  of 
the  State  as  a  whole,  is  diverted  from  its  duty;  its  time  is 
consumed  in  passing  laws  that  are  little  better  than  ordi- 
nances, relating  only  to  local  matters  of  the  most  ele- 
mentary sort.  The  great  evil  is  the  constant  legislative 
invasion  of  the  just  and  undoubted  field  of  city  govern- 
ment. No  local  policy,  however  wise  or  necessary,  can  be 
put  into  operation  with  any  certainty  that  the  central  legis- 
lative authority  will  not  arbitrarily  substitute  another  pol- 
icy at  its  own  pleasure.  As  it  takes  only  a  bare  majority 
of  the  legislators  present  in  either  house  to  override  city 
disapproval,  the  legislature  is  often  able  to  work  its  will, 
despite  the  remonstrance  of  city  officials. 

The  local  sentiment  which  would  stop  legislative  tinker- 
ing with  local  government,  the  home  rule  sentiment,  as  it 
is  often  termed,  has  made  great  advance  within  a  few  years. 
This  sentiment  compelled  the  leading  political  parties  in 
19 12  to  put  home  rule  planks  in  their  convention  platforms. 
And  within  the  last  two  years  it  has  secured  the  enactment 
of  two  measures  of  local  emancipation  which  may  even- 
tually prove  of  great  importance.  The  main  object  of  the 
first  of  these,  the  so-called  Municipal  Empowering  Act 
(Chapter  247,  Laws  of  191 3)  was  to  obviate  the  need  for 


STATE   OF    NEW   YORK  275 

constant  resort  by  cities  to  the  legislature  for  authority  to  do 
specific  things.  It  involves  a  reversal  of  the  common  point 
of  view  of  a  city  charter — that  it  is  to  be  strictly  construed. 
This  is  shown  in  section  19 — the  general  grant  of  powers — 
which  reads : 

"Every  city  is  granted  power  to  regulate,  manage  and  control  its 
property  and  local  affairs  and  is  granted  all  the  rights,  privileges  and 
jurisdiction  necessary  and  proper  for  carrying  such  power  into  execu- 
tion. No  enumeration  of  powers  in  this  or  any  other  law  shall  operate 
to  restrict  the  meaning  of  this  general  grant  of  power,  or  to  exclude 
other  powers  comprehended  within  this  general  grant." 

The  act  is  not  intended  to  enable  a  city  to  frame  its  own 
charter.  Underlying  it  there  is  recognition  of  the  fact  that 
a  city,  which  is  an  incorporated  body  of  citizens,  already 
has  a  charter  or  fixed  form  of  government.  The  act  merely 
adds  to  the  sum  of  powers  which  a  city's  of^cers  may  exer- 
cise under  its  existing  charter.  It  grants  a  larger  measure 
of  powers  for  the  doing  of  the  things  which  the  city  has 
been  organized  to  do  but  without  intent  to  permit  it  to 
revolutionize  its  existing  form  of  government.  The  con- 
stitutionality of  this  statute  was  subsequently  assailed,  but 
in  several  well  considered  opinions  it  has  been  sustained.^ 
It  was  followed  by  a  measure  drawn  with  similar  care, 
known  as  the  Optional  City  Charter  Act  (Chapter  444, 
Laws  of  1914).  This  statute  provides  six  different  forms 
of  city  charter  for  cities  of  the  second  and  the  third  class — 
including  the  commission  form,  the  city  manager  plan  and 
simplified  mayor  and  council  plans,  any  one  of  which  may 
be  adopted  by  a  city  after  a  referendum  vote,  for  the  taking 
of  which  the  act  itself  makes  seemingly  adequate  provision. 

The  Municipal  Government  Association,  under  whose 
auspices  these  two  measures  were  drafted,  presented  to  the 
legislature  of  19 14  a  home  rule  amendment  to  the  consti- 
tution which  passed  the  assembly,  and  narrowly  failed  of 
passage  in  the  senate.     The  proposed  amendment  would 


See  for  example  Hammitt  v.  Gaynor,  82  Misc.  193. 


27^  CONSTITUTIONAL   HISTORY 

confer  upon  each  city  and  each  village  plenary  control  over 
its  own  property,  affairs  and  government,  subject  to  the 
constitution  and  laws  of  the  State.  No  enumeration  of 
powers  contained  in  any  law  shall  be  deemed  to  limit  or 
restrict  the  general  grant  of  powers  conferred  by  the  con- 
stitution. Each  city  and  each  village  is  to  have  power  to 
adopt  and  amend  local  laws  not  inconsistent  with  the  con- 
stitution and  general  laws  of  the  State  in  so  far  as  neces- 
sary for  the  exercise  of  all  constitutional  and  statutory 
powers  within  the  sphere  of  its  appropriate  activity. 

The  emancipation  of  the  city  will  never  be  attained 
until  the  prevailing  concept  of  the  relation  of  the  city  to  the 
State  has  been  radically  changed.  It  has  become  almost 
an  axiom  that  a  city  charter  is  to  be  so  strictly  construed 
that  nothing  may  pass  by  inference;  that  every  substantial 
power  must  be  found  in  express  terms  in  the  grant.  Accord- 
ingly the  city  is  treated  as  the  creature  of  the  legislature 
whose  charter  may  be  altered,  even  taken  away,  at  the 
pleasure  of  the  central  authority.  There  have,  at  times, 
been  eloquent  judicial  protests  against  this  doctrine,  as  in 
People  V.  Hurlbut  (24  Mich.,  44),  where  Judge  Cooley 
denied  that  local  self-government  was  "a  mere  privilege, 
conceded  by  the  legislature  in  its  discretion"  to  "be  with- 
drawn at  any  time  at  pleasure.'*  To  paraphrase  the  state- 
ment of  Chancellor  Kent  nearly  one  hundred  years  ago 
regarding  charter  powers  of  New  York  City — the  power 
of  a  city  should  be  liberally  construed  so  far  as  concerns 
the  purposes  and  objects  for  which  city  government  is 
organized.  Recent  legislation  in  this  State  has  taken  a 
forward  step  in  securing  the  home  rule  law,  with  its  impor- 
tant declaration  that  no  enumeration  of  powers  shall  ope- 
rate to  restrict  the  general  grant  of  power.  To  make  this 
rule  of  construction  binding  upon  the  courts  a  constitu- 
tional amendment  is  necessary. 

American  legislatures  are  beginning  to  appreciate  the 
dual  character  of  a  city  government  and  to  differentiate  the 


STATE   OF   NEW   YORK  277 

sphere  of  local  action  in  which  the  city  should  be  free  from 
all  legislative  interference  and  the  domain  in  which  it  is 
merely  an  agent  of  the  State.  The  right  of  cities  to  self- 
government — a  right  acknowledged  in  Great  Britain  and 
upon  the  continent  of  Europe,  a  right  which  may,  in  a 
sense,  be  said  to  be  as  old  as  civiHzation  itself — is  now  rec- 
ognized in  numerous  State  constitutions. 

In  so  far  as  the  city  is  a  political  or  governmental  sub- 
division of  the  State,  an  agency  of  the  State  to  do  its  work, 
the  legislature  is  supreme  over  it,  but  in  so  far  as  it  is  an 
aggregation  of  people  choosing  to  carry  on  collectively  cer- 
tain local  business  of  a  general  nature,  "matters,"  as  Gov- 
ernor Tilden  once  said,  ''most  conveniently  attended  to  in 
partnership  by  persons  living  together  in  a  dense  commu- 
nity," for  obvious  reasons  it  should  have  unqualified  control 
of  this  business.  In  exclusively  local  concerns  the  city 
should  be  sovereign,  although  still  part  of  the  State  and 
subject  to  its  superior  law  in  matters  of  general  concern. 
This  is  the  immemorial  home  rule  principle,  the  imperish- 
able neighborhood  and  city  instinct,  that  has  persisted 
against  all  State  centralization  and  will  persist  until  its 
acceptance  has  taken  the  form  of  a  constitutional  guaranty. 

City  dwellers  are  rousing  themselves  from  their  long 
lethargy  to  learn  that  the  government  of  themselves  is  one 
of  the  highest  political  tasks  in  modem  life.  The  extent 
and  importance  of  the  public  service  rendered  by  private 
citizens  without  expectation  of  reward  and  their  zeal  in 
reform  politics,  are  most  hopeful  auguries.  Knowledge  of 
the  effect  of  city  development  upon  land  values  and  public 
utilities  has  stimulated  the  inclination  to  preserve  collective 
wealth  for  the  public  to  which  it  belongs,  and  to  check  its 
appropriation  by  private  interests,  a  process  which,  had  it 
sooner  begun,  would  have  reduced  municipal  taxation 
almost  to  its  lowest  terms  and  placed  an  enormous  capital 
balance  to  the  city's  credit  in  its  ledger.  The  absorption  of 
community  property  by  individuals  will  cease,  franchises 


^7S  CONSTITUTIONAL   HISTORY 

deriving  their  financial  importance  from  city  expansion, 
whether  they  relate  to  the  surface,  to  land  beneath  it,  or  to 
avenues  through  the  air,  will  be  neither  corruptly  obtained 
nor  given  away,  but  will  be  unwaveringly  acknowledged  to 
be  municipal  property;  and  yet  the  sphere  of  private  enter- 
prise will  not  be  unjustly  circumscribed. 

The  city  revolutionizes  notions  of  government.  It  ini- 
tiates revolt  against  assent  to  long  accepted  principles.  It 
has  taught  the  laissez  faire  doctrine  its  limitations,  and 
opened  new  areas  to  the  police  power.  The  concentration 
of  masses  in  urban  life  compels  many  readjustments,  if 
the  right  to  live  and  to  live  healthfully  is  to  be  recognized. 
The  "more  and  fuller"  life,  which  is  the  dream  of  modern 
democracy,  includes  in  its  comprehensive  aspirations  suc- 
cessful treatment  of  the  housing,  the  fire,  the  water,  the 
sanitary,  the  transportation  problem,  better  education, 
ample  school  accommodations,  recreation  centres,  parks, 
courts  in  which  real  justice  is  administered  to  the  poor, 
streets  and  avenues  fitted  for  the  varied  business  of  a  city, 
a  comprehensive  city  plan  with  opportunities  for  expansion 
and  beautification,  and  a  genuine  civic  spirit  incompatible 
with  the  continuance  of  ignoble  or  dishonorable  methods 
in  dealing  with  the  city.  The  test  of  civilization  may,  in 
a  sense,  be  said  to  lie  in  its  ability  to  solve  the  intricate 
problems  of  city  life.  The  relations  of  the  city  to  the  future 
of  democracy  are  momentous.  The  city  may  transform  its 
children  into  grotesque  creatures  like  the  comprachicos  who 
were  the  sport  of  royalty  a  few  centuries  ago,  or  may  pre- 
pare them  for  wise  and  lofty  citizenship.  There  are  signs 
that  commercialism  in  city  politics  has  reached  its  flood 
and  is  ebbing.  The  checkered  history  of  municipal  govern- 
ment during  the  last  generation  rightly  interpreted  shows 
signal  advance,  and  justifies  the  largest  measure  of  hope  for 
the  city  of  the  future.  The  remedies  for  municipal  mal- 
administration may  confidently  be  trusted  to  the  intelligence 
and  judgment  of  the  widening  circle  of  educated  citizenship. 


STATE  OP  NEW  YORK  ^79 


CHAPTER  XV 

EFFECT  OF  THE  CONSTRUCTION  OF  RAILROADS  UPON   CANAL 
REVENUES — FORMATION    OF    THE    NEW    YORK    CENTRAL 

SYSTEM ^THE  ERIE  RAILROAD INCREASE  IN  TONNAGE 

CARRIED  BY  RAIL INFLUENCE  OF  THE  GRAIN  CARRY- 
ING TRADE  UPON  RAILROAD  RATES ASSEMBLY  COM- 
MITTEE TO  INVESTIGATE  RAILROAD  ABUSES ITS  REPORT 

INJUSTICE  OF  SECRET  AND  SPECIAL  RATES RECOM- 
MENDATIONS OF  THE  COMMITTEE — PASSAGE  OF  CON- 
STITUTIONAL      AMENDMENTS      AFFECTING       CANALS 

IMPROVEMENT  OF  CANALS  AND  INLAND  WATERWAYS 

GOVERNOR   Roosevelt's    committee   on   the   state 

CANAL   POLICY  AND   ITS    REPORT PROVISION    FOR   THE 

$101,000,000  BARGE  CANAL. 

When,  after  its  completion,  the  Erie  canal  was  found 
to  pour  a  golden  flood  of  benefits  into  the  State,  in  the 
general  optimism  of  feeling  that  the  commerce  of  the  west 
had  become  perpetually  tributary  to  the  State,  the  belief 
prevailed  that  canals  would  always  bring  immense  revenues 
into  its  treasury.^      As  early  as   18 18  Governor  Clinton 


*"The  revenue  from  tolls  was  so  large  during  the  decade  after 
the  completion  of  the  Erie  that  extravagant  notions  were  entertained 
as  to  their  volume  in  the  future.  It  was  predicted  that  they  would 
amount  to  a  million  dollars  in  1836  and  four  million  in  1856,  and  would 
continue  to  increase  in  that  proportion  for  half  a  century"  (Hill, 
Waterways  and  Canal  Construction  in  New  York  State,  152). 

The  gross  tolls  in  1876  were  only  $1,340,000,  and  in  1877  only 
$880,000,  a  lower  amount  of  receipts  for  tolls  than  had  been  known, 
said  Governor  Robinson  in  1878,  for  the  preceding  forty-five  years. 
There  was  a  slight  advance  in  the  next  year,  but  the  gross  tolls  for  the 
year  ending  September,  1882,  fell  to  $818,264.61. 


28o  CONSTITUTIONAL   HISTORY 

declared  that  the  canals  were  to  be  *'a  prolific  source  of 
revenue  for  the  general  purposes  of  government."  The 
Erie  canal  might  have  proved  a  veritable  Pactolus  flowing 
on  forever,  but  for  the  rise  of  an  agency  of  transportation 
not  foreseen  when  it  was  first  projected ;  and  this  novel  and 
unexpected  competitor  not  only  diverted  commerce  to  its 
rails,  but  also  revolutionized  the  point  of  view  to  be 
taken  of  the  canal.  As  Eli  Whitney's  invention  of  the 
cotton  gin,  with  all  its  profound  effects,  is  after  a  century 
seen  to  have  been  one  of  the  most  influential  factors  in  the 
political  history  of  the  nation,  so  the  modern  railway,  which 
has  grown  from  George  Stephenson's  locomotive,  "The 
Rocket,"  is,  as  Charles  Francis  Adams,  Jr.  has  said,  "with 
perhaps  few  exceptions  the  most  tremendous  and  far-reach- 
ing engine  of  social  change  which  has  either  blessed  or 
cursed  mankind." 

We  are  not  here  concerned  with  the  evolution  of  the 
railway  system  except  to  show  its  effect  upon  the  utility  of 
the  canals,  which  reached  their  period  of  greatest  pros- 
perity between  1868  and  1874,  after  which  canal  commerce 
began  to  decline. 

The  genesis  of  the  vast  New  York  Central  system  was 
in  the  charter  granted  by  the  State  of  New  York  to  the 
Mohawk  and  Hudson  Railroad  in  the  year  1826.  In  1827 
the  legislature  of  Massachusetts  ordered  surveys  to  be  made 
of  the  most  practicable  routes  for  a  railway  between  Boston 
and  the  Hudson  river  at  or  near  Albany.  The  Erie  rail- 
way, in  which  the  State  invested  $6,000,000  of  its  own 
money  by  way  of  concession  to  the  interests  of  its  southern 
tier  of  counties  as  an  equivalent  for  the  Erie  canal,  was 
chartered  in  1832.  Pennsylvania  initiated  its  railway  sys- 
tem in  1827;  the  Baltimore  and  Ohio  road  followed  in 
Maryland  in  the  succeeding  year.  In  1853  the  New  York 
Central  was  formed  by  the  consolidation  of  eleven  separate 
lines,  and  in  1869  was  amalgamated  with  other  roads  into 
the  New  York  Central  and  Hudson  River  Railroad  Com- 


STATE   OF   NEW   YORK  281 

pany.  This  road  speedily  absorbed  the  Lake  Shore  and 
Michigan  Southern  Railroad  Company  by  obtaining  con- 
trol of  a  majority  of  its  stock,  and  about  the  same  time 
acquired  control  of  the  Rock  Island  and  the  Chicago  and 
Northwestern.  In  1870,  by  means  of  a  perpetual  lease  of 
the  United  Companies  of  New  Jersey,  the  Pennsylvania 
Railroad  gained  a  terminus  at  New  York,  and  almost  simul- 
taneously established  connections  which  brought  it  into 
Chicago,  Cincinnati  and  St.  Louis.  The  Erie  and  the  Balti- 
more and  Ohio  also  expanded  to  the  same  points  west. 
An  era  of  railroad  enterprise  had  set  in  which  met  a  tem- 
porary check  only  in  the  panic  of  1873. 

*'The  great  factors  in  the  economic  progress  of  the 
country  between  1867  ^^^  i^^^  were  railroad  building  with 
its  dependent  industries  and  the  expansion  of  farming."  ^ 
To  stimulate  the  first,  both  the  national  government  and  the 
States  made  grants  of  land  to  railways  upon  a  colossal 
scale.  Garfield  declared  that  these  donations  covered  an 
area  nine  times  the  size  of  the  State  of  Ohio.  The  release, 
after  the  Civil  War,  from  army  service  of  a  great  body  of 
men  to  return  to  peaceful  pursuits,  and  the  opening  of  the 
west  by  railroads,  coincided  with  a  period  of  large  immi- 
gration, a  movement  of  native  population  westward,  and 
depression  in  the  wheat  industry  abroad.  By  the  opening 
of  the  great  routes  to  the  seaboard  and  the  reduction  of 
railway  charges  over  long  distances,  a  condition  most  favor- 
able to  large  exports  was  created,  with  the  result  that  the 
balance  of  trade  with  Europe  was  turned  in  favor  of  this 
country.  "Since  1880  the  country  as  a  whole  has  exported 
each  year  from  twenty-one  to  forty-one  per  cent,  of  the 
wheat  which  it  has  raised,  the  average  being  thirty-two  per 
cent.  In  these  same  years  the  leading  surplus  wheat  pro- 
ducing States  of  Kansas,  Nebraska,  Minnesota  and  the 
Dakotas  have  had  to  find  in  the  south,  upon  the  Atlantic 


Hugo  Richard  Meyer,  "Regulation  of  Railway  Rates,"  204. 


282  CONSTITUTIONAL   HISTORY 

seaboard  and  in  Europe,  a  market  for  not  less  than  eighty- 
five  per  cent,  of  their  crop."  ^ 

To  accomplish  this  result,  the  rates  for  carrying  wheat 
to  the  Atlantic  seaboard  had  to  be  reduced.  As  late  as 
1866-68  practically  the  whole  of  the  grain  arriving  at  New 
York  had  come  by  water,  but  improvements  in  railway 
transportation  and  the  reduction  of  rates  soon  led  to  a 
vast  increase  in  the  tonnage  carried  by  rail.  The  economies 
on  the  canal  stood  still,  while  those  on  the  railways  forged 
ahead;  by  1872  the  amount  carried  by  canal  was  seventy 
per  cent.,  and  by  1876  it  had  fallen  to  fifty-seven  per  cent. 
When  the  Baltimore  and  Ohio  and  the  Pennsylvania  suc- 
ceeded in  reaching  Chicago  by  rail,  they  competed  with 
the  New  York  roads  and  canals  for  the  grain  carriage,  but 
as  ocean  freights  to  Europe  were  higher  from  Boston  and 
Philadelphia  than  from  New  York,  the  differential  agree- 
ment was  established  by  the  railroads,  which  made  the  rail 
rates  to  New  York  suf^ciently  higher  than  to  Boston  and 
Philadelphia  to  compensate,  as  was  claimed,  for  the 
higher  cost  of  ocean  service  from  these  last  ports.  To 
check  the  loss  of  canal  freights  the  State  reduced  canal 
tolls  and  ultimately,  by  the  constitutional  amendment  of 
1882,  abandoned  all  toll  charges.  The  competition  of  rival 
seaboard  cities  for  the  grain  carrying  trade  was  a  leading 
factor  in  further  reduction  of  railway  freight  rates,  and 
the  handicap  put  upon  the  port  of  New  York  by  the  differ- 
ential agreement  undoubtedly  aided  the  diversion  of  a  large 
tr-ade  from  New  York  City  to  other  competing  cities.  It 
was  this  sensible  decline  in  the  outward  commerce  of  the 
port,  accompanied  by  a  decline  in  imports,  that  was  the 
origin  of  the  movement  for  an  enlarged  canal. 

As  early  as  March,  1879,  the  legislature  of  New  York 
had  been  impelled  by  public  sentiment  to  appoint  a  com- 
mission to  investigate  abuses  alleged  to  exist  in  the  man- 


'  Meyer,  "Regulation  of  Railway  Rates,"  210,  211. 


STATE   OF   NEW   YORK  283 

agement  of  railroads  chartered  within  the  State.  The  report 
of  this  committee,  of  which  A.  Barton  Hepburn  was  chair- 
man, made  on  January  2j,  1880,  created  a  profound  impres- 
sion, for  it  showed  the  abuses  perpetrated  by  the  railways 
to  the  detriment  of  commerce  that  would  naturally  find  an 
outlet  through  the  commonwealth.  It  was  originally  sup- 
posed, said  the  report,  that  passengers  only  and  not  freight, 
except  in  the  most  limited  degree,  could  be  carried  by  rail. 
The  report  continued : 

"Restrictions  were  accordingly  thrown  around  the  passenger  traffic, 
and  it  has  been  at  all  times  and  is  today  carefully  guarded  and  regu- 
lated by  positive  statutes.  The  roads  were  forbidden  to  carry  freight 
in  opposition  to  the  canals;  and  later,  when  they — the  railroads  now 
forming  the  New  York  Central — were  found  carrying  freight,  they 
were  required  to  pay  to  the  canal  fund  a  sum  equal  to  the  tolls  exacted 
for  a  similar  carriage  by  canal.  This  restriction  was  soon  removed, 
and  the  railroads  left  to  their  own  management,  practically  unrestricted 
and  uncontrolled  as  to  carriage  of  freight,  and  remain  so  today.  True, 
April  14,  1855,  a  law  was  passed  creating  a  board  of  railroad  commis- 
sioners. But  this  was  found  an  inconvenient  interference  with  railroad 
plans,  and  so  the  roads  paid  the  commissioners  the  full  amount  of  their 
salaries  for  the  term  for  which  they  were  created  ($25,000),  to  silence 
their  opposition,  and  then  procured  the  repeal  of  the  law  creating  the 
commission,  in  April,  1857. 

"In  discharging  the  duty  it  owed  to  commerce  and  the  public,  the 
State  either  had  to  construct  railroads  on  its  own  account,  or  authorize 
corporations  or  associations  to  do  so,  clothing  them  with  the  preroga- 
tives of  the  State  for  that  purpose.  In  view  of  our  costly  experience 
in  State  management  of  various  institutions,  and  the  extent  to  which 
the  managers  and  attaches  of  those  institutions  became  factors  in  our 
politics,  there  is  no  doubt  the  State  acted  wisely  in  committing  the  con- 
struction of  railroads  to  associations  of  citizens.  There  is  no  doubt 
of  the  wisdom  of  lending  State  aid  to  encourage  railroad  building  dur- 
ing its  incipient  and  experimental  period.  It  grew,  however,  into  an 
abuse." 


The  report  dealt  also  with  fast  freight  lines,  watered 
stock,  railroad  consolidation  and  terminal  facilities.  From 
its  insular  position  the  city  of  New  York  enjoyed  peculiar 
advantages  in  receiving  and  forwarding  freight  by  water, 
but  what  was  to  its  advantage  in  this  respect  was  to  its 


284  CONSTITUTIONAL   HISTORY 

disadvantage  as  a  railroad  terminus.  In  contrast  with 
cities  to  the  south,  its  disadvantage  was  that  the  roads  had 
not  immediate  access  to  the  water-front,  and  that  Hghterage 
expenses  had  to  be  incurred  in  transporting  freight  from 
railroad  termini  to  warehouses  and  points  of  shipment. 
This  lighterage  charge,  which  brought  no  profit  to  the  rail- 
roads, nevertheless  constituted  a  tax  upon  transportation 
and  a  burden  upon  the  commerce  of  New  York,  threaten- 
ing a  diversion  of  commerce  from  the  city  until  vessel  and 
car  could  be  brought  together. 

The  agreements  entered  into  in  1877  between  the  New 
York  Central  and  Hudson  River  Railroad  Company,  the 
Erie,  the  Pennsylvania  Railroad  and  the  Baltimore  and 
Ohio  Company  made  the  charges  on  east  bound  freight 
less  to  Baltimore  than  to  Philadelphia,  and  less  to  Philadel- 
phia than  to  New  York.  Of  the  west  bound  business  of 
the  port,  other  than  California  business,  thirty- three  per 
cent,  was  apportioned  to  the  New  York  Central  and  the 
Erie  each,  twenty-five  per  cent,  to  the  Pennsylvania  and 
nine  per  cent,  to  the  Baltimore  and  Ohio,  while  all  Cali- 
fornia business  was  divided  equally.  Ocean  rates  from 
Philadelphia  averaged  slightly  higher  per  year  than  rates 
from  New  York;  the  rates  from  Baltimore  were  slightly 
higher  per  year  than  rates  from  Philadelphia,  yet  the  differ- 
ence by  no  means  equalled  the  difference  in  rail  rates  con- 
ceded to  the  more  southern  cities.  Boston  was  given  the 
same  railroad  rate  as  New  York.  The  ocean  rates  from 
New  York  and  Boston  averaged  the  same. 

The  report  disclosed  for  the  first  time  the  arrangements 
between  the  railroads  and  the  Standard  Oil  Company,  by 
which  the  roads  had  placed  in  the  absolute  control  of  this 
company  the  handling  of  all  oil  carried  by  them  to  New 
York.  The  preferential  rates  given  to  that  company  had 
enabled  it  to  grow  to  colossal  proportions.  The  report 
dealt  with  the  inducements  to  mismanagement  by  the  sale 
of  proxies  of  the  real  owners  of  stock  to  the  officers  of  a 


STATE   OF   NEW   YORK  285 

company  for  the  time  being,  which  enabled  such  officers  to 
perpetuate  themselves  in  power.  (This  led  to  a  change  in 
the  law  respecting  proxies.)  It  showed  also  the  failure  of 
statutory  requirements  to  secure  an  accurate  history  of  the 
yearly  transactions  of  the  railroads,  for  full  compli- 
ance with  the  law  did  not  disclose  their  actual  condition. 
The  railroads  of  the  State  discriminated  against  citizens  of 
the  State  in  favor  of  western  and  foreign  producers,  and 
numerous  special  contracts  existed  with  the  New  York 
Central  and  Hudson  River  Railroad,  estimated  by  railroad 
men  at  six  thousand  (the  number  was  much  less  with  the 
Erie),  whereby  secret  special  rates  were  given  upon  time 
contracts,  and  under  which  the  open  rate  varied  to  the 
advantage  of  the  party  obtaining  the  special  rate,  thus 
favoring  certain  localities,  and  even  individuals  in  localities, 
as  against  other  individuals  in  the  same  region.  There  was 
no  unit  of  volume  at  which  one  man  might  ship  as  cheaply 
as  another.  He  who  went  into  a  railroad  office  and  bar- 
tered for  a  low  rate  obtained  it,  while  his  competitor,  rely- 
ing on  equitable  treatment  or  unaware  that  secret  special 
rates  might  be  had,  paid  a  higher  rate.  Competition  among 
railroads  as  a  regulator  of  freight  tariff  was  found  to  be  a 
failure.  No  community  could  support  parallel  railroads. 
But  the  competition  of  waterways  served  as  a  general  reg- 
ulator of  rail  rates.     The  report  said  also : 

"The  political  influence  of  these  corporations  should  be  understood. 
Not  less  than  thirty  thousand  voters  are  in  the  direct  employ  of  the 
railroads  of  this  State — a  number  sufficient  to  have  turned  the  scale  at 
any  election  in  recent  years.  These  employees  are  doubtless  divided  in 
political  sentiments,  yet  in  times  like  the  past  and  present,  the  question 
of  remunerative  employment  is  of  paramount  importance  to  the  in- 
dividual employed,  as  compared  with  the  success  of  either  party.  The 
political  sentiments  of  corporations  have  been  aptly  and  truly  described 
by  a  prominent  railroad  man  who  testified:  Tn  a  Republican  district 
I  was  Republican,  in  a  Democratic  district  I  was  a  Democrat,  in  a 
doubtful  district  I  was  doubtful,  but  I  was  always  Erie.'  The  possible 
exercise  of  this  vast  political  power,  direct  and  indirect,  not  to  discuss 
its  exercise  in  the  past,  seems  to  your  committee  an  unanswerable  argu- 


286  CONSTITUTIONAL   HISTORY 

ment  in  favor  of  instituting  governmental  supervision  of  railroads  and 
holding  them  in  their  management  to  a  strict  accountability." 

( 
The  report  recognized  that  the  questions  involved  often 
transcended  the  hmits  of  State  jurisdiction.  It  denounced 
the  granting  of  unequal  or  preferential  rates,  the  making  of 
secret  rates  and  the  giving  of  drawbacks  and  rebates.  It 
advocated  the  fixing  of  a  proper  unit  of  shipment,  and  the 
prohibition  of  a  greater  charge  for  a  short  haul  than  for  a 
long  haul.  It  advocated  publication  of  a  full  history  of  the 
transactions  of  each  road  during  each  year,  both  financial 
and  business,  it  proposed  amendments  to  the  law  which 
permitted  the  roads  upon  consolidation  to  fix  their  capi- 
tal stock  at  any  amount;  and  it  recommended  the  crea- 
tion of  a  commission  to  be  composed  of  three  individuals 
with  ample  powers  of  investigation  and  recommendation, 
one  commissioner  to  be  an  expert  in  railroad  business, 
another  to  be  a  representative  of  the  commercial  interests 
of  the  city  of  New  York  and  the  third  to  represent  the 
interests  of  the  interior  of  the  State,  one  of  the  three  to  be 
a  lawyer.  Two  of  the  members  dissented  from  the  recom- 
mendation for  the  appointment  of  a  commission.* 


*The  Railroad  Commission  as  organized  by  Chapter  353,  Laws 
of  1882,  consisted  of  three  persons  to  be  appointed  by  the  governor  with 
the  advice  and  consent  of  the  senate,  one  to  hold  office  three,  one  four, 
and  one  five  years.  One  member  was  to  be  selected  from  the  party 
which  should  cast  at  the  general  election  for  governor  succeeding  the 
year  1882  the  largest  number  of  votes ;  one  was  to  be  a  person  ex- 
perienced in  railroad  business;  and  the  third  was  to  be  selected  upon 
the  recommendation  of  the  Chamber  of  Commerce,  the  New  York 
Board  of  Trade  and  Transportation  and  the  National  Anti-Monopoly 
League  of  New  York,  or  any  two  of  such  organizations.  Jurisdiction 
was  given  to  the  commission  over  accidents,  fatalities  and  injuries 
upon  railroads  and  also  over  freight  rates.  Its  expenses  were  to  be 
paid  by  the  railroads.  By  Chapter  728,  Laws  of  1905,  its  membership 
was  enlarged.  This  commission  was  eventually  superseded  by  the 
two  public  service  commissions,  one  for  Greater  New  York,  the  other 
for  the  residue  of  the  State  (Chapter  429,  Laws  of  1907)-  Each  com- 
mission was  to  consist  of  five  members  to  be  nominated  by  the  gov- 
ernor and  confirmed  by  the  senate.    This  last  statute  abolished  not  only 


STATE   OF    NEW   YORK  287 

The  committee  proposed  also  certain  amendments  to 
the  general  railroad  law,  which  were  submitted  as  an  appen- 
dix to  its  report,  one,  authorizing  the  formation  of  railroad 
corporations  and  regulating  the  same;  another,  forbidding 
the  issue  by  a  railroad  company  formed  by  the  consolida- 
tion of  two  or  more  such  companies  of  capital  stock  in 
excess  of  the  aggregate  of  the  capital  stock  of  the  com- 
panies so  consolidated,  at  par,  and  forbidding  the  issue  of 
bonds  or  other  evidences  of  debt  as  a  consideration  for  or 
in  connection  with  such  consolidation;  the  third,  to  regu- 
late voting  by  stockholders  and  bondholders,  the  fourth,  to 
regulate  the  transportation  of  freight,  the  fifth,  creating  a 
board  of  railroad  commissioners  and  defining  and  regu- 
lating their  powers  and  duties,  and  the  sixth,  requiring  a 
verified  report  to  be  annually  filed  setting  forth  specifically 
the  matters  referred  to  in  the  proposed  enactment.  Many 
of  these  suggestions  were  embodied  in  legislation,  but  as 
the  major  evils  of  which  the  report  complained  affected 
interstate  commerce,  the  subject  transcended  the  powers 
of  the  State  and  could  be  dealt  with  adequately  only  by 
Congress,  which  in  1887  created  the  Interstate  Commerce 
Commission. 

The  announcement  by  the  Hepburn  Committee  of  the 
principle  that  the  competition  of  waterways,  whether  arti- 
ficial or  natural,  would  serve  as  a  general  regulator  of 


the  Railroad  Commission,  but  also  the  Gas  and  Electricity  Commission, 
the  Rapid  Transit  Commission  of  New  York  and  the  office  of  gas 
inspector,  and  transferred  their  respective  jurisdiction,  powers  and 
duties  to  the  new  commissions.  In  1910  the  jurisdiction  of  the  Public 
Service  Commissions  was  extended  to  include  telegraph  and  telephone 
companies. 

The  Board  organized  under  the  act  of  1855  was  maintained  by  the 
different  corporations  it  was  appointed  to  supervise,  in  this  respect  fol- 
lowing the  principle  adopted  for  the  Banking  Department;  and  the 
same  course  was  pursued  when  the  Commission  of  1882  was  appointed. 
The  salaries  of  the  Public  Service  Commissioners  are  paid  by  the 
State  at  large,  while  certain  expenses  in  the  first  district  are  borne  by 
the  City  of  New  York. 


288  CONSTITUTIONAL    HISTORY 

railway  rates,  undoubtedly  aided  the  movement  for  "the 
abolition  of  canal  tolls.  The  freedom  of  the  canals  was 
favored  by  some  of  the  ablest  of  New  York  statesmen — 
Conkling,  Evarts  and  Seymour — and  its  wisdom  approved 
by  Judge  Cooley,  who,  as  chairman  of  the  Interstate  Com- 
merce Commission,  officially  declared  in  its  first  report  that 
the  Erie  canal  influenced  the  rates  to  New  York  more  than 
any  other  one  cause,  and  that  through  its  effect  upon  these 
rates  it  indirectly  influenced  those  to  all  other  seaboard 
cities.  It  was  recognized  that  the  commercial  supremacy 
of  the  State  was  in  jeopardy,  that  the  freedom  of  the 
canals  was  necessary  to  save  it — if,  in  fact,  it  could  be 
preserved.  The  movement  for  abolition  of  canal  tolls  cul- 
minated in  the  presentation  to  the  assembly  by  Honorable 
Isaac  I.  Hayes  of  a  resolution  proposing  an  amendment 
to  the  constitution  abolishing  tolls  and  providing  for  the 
payment  of  canal  expenses  and  the  liquidation  of  the  canal 
debt.  This  amendment  was  approved  by  the  legislatures 
of  1 88 1  and  1882,  and  ratified  by  the  people  at  the  gen- 
eral election  in  the  fall  of  1882  by  the  decisive  popular 
vote  of  486,105  in  its  favor  to  163,151  against  it,  and 
became  operative  January  i,  1883.  By  it  tolls  were  abol- 
ished for  the  future,  and  the  legislature  was  required  an- 
nually to  provide  for  the  expenses  of  the  superintendence 
and  repairs  of  the  canals,  and  for  the  payment  of  the 
principal  and  interest  of  the  canal  debt  by  equitable  taxes. 
Abolition  of  the  tolls,  however  wise,  could  not  stop  the 
operation  of  the  causes  which  had  necessitated  it.  Western 
grain  areas  kept  constantly  expanding.  The  competition 
for  their  harvests  increased  and  necessitated  railway  and 
canal  improvements  to  the  seaboard.  A  slight  gain  in 
canal  tonnage  temporarily  followed  the  passage  of  the 
amendment,  which  was  not,  however,  able  for  any  great 
length  of  time  to  arrest  decline.  The  impression  prevailed 
that  the  canals  should  be  enlarged  and  improved,  and  the 
necessity  for  an  amendment  to  render  this  practicable  was 


STATE   OF   NEW    YORK  289 

urged  in  the  convention  of  1894.  In  the  convention  the 
chief  advocates  of  this  poHcy  were  Senator  Henry  W.  Hill, 
Judge  Chester  B.  McLaughlin  and  Judge  Daniel  S.  Cady. 
Hill  argued  that  it  would  be  unwise  to  dig  a  ship  canal 
between  Lake  Erie  and  the  Hudson,  as  its  cost  would  ex- 
ceed the  financial  ability  of  the  State,  and  lake  transporta- 
tion and  canal  transportation  could  never  profitably  be 
assimilated.  He  quoted  figures  from  the  State  auditor's 
report  to  show  what  vast  revenues  had  accrued  to  the 
State  from  its  canals.  The  State  had  received  from 
canal  tolls  and  water  privileges  upwards  of  $133,000,000; 
the  boatmen  upon  the  canals  had  received  for  freights  more 
than  $225,000,000.  According  to  reliable  estimates  there 
had  been  contributed  by  canals  to  merchants,  warehouse- 
men and  forwarders  in  commissions  and  storage,  upwards 
of  $110,000,000.  The  aggregate  revenues  from  the  canals^ 
he  declared,  had  exceeded  $468,000,000,  and  had  been  ob- 
tained at  an  expense  to  the  taxpayers  of  only  $60,000,000. 
The  canals  were  an  advantage  because  they  tended  to 
regulate  railway  charges,  as,  had  frequently  been  acknowl- 
edged. They  had  enabled  the  State  to  control  the  carry- 
ing trade  of  the  northwestern  States  and  Territories.  Re- 
liance upon  national  aid  for  canal  improvement  was  useless, 
for  Congress  would  require  as  a  condition  precedent  the 
transfer  of  the  canals  to  the  government.  Without  canals 
the  cost  of  transporting  western  grain  to  the  seaboard,  ac- 
cording to  the  best  authorities,  would  be  increased  at  least 
two  cents  a  bushel.  Every  reason  favored  the  removal  of 
the  constitutional  prohibition  upon  the  creation  of  canal 
indebtedness  and  provision  for  immediate  canal  improve- 
ment. The  proposed  amendments  provided  that  the  canals 
might  be  improved  in  such  manner  as  the  legislature  should 
direct  by  law,  and  that  the  cost  of  improvement  be  defrayed 
by  appropriations  from  the  State  treasury  or  by  equitable 
taxes. 

These  amendments  were  submitted  separately  from  the 


290  CONSTITUTIONAL    HISTORY 

body  of  the  new  constitution,  were  ratified  by  the  people, 
and  took  effect  January  i,  1895.  The  vote  in  their  favor 
was  442,998;  against,  327,645.  In  1895  the  legislature 
passed  a  law  authorizing,  with  the  approval  of  the  people, 
an  issue  of  bonds  not  exceeding  $9,000,000  in  amount,  for 
the  improvement  of  the  Erie,  Champlain,  and  Oswego 
canals,  and  directing  the  submission  of  the  question  of  im- 
provement to  popular  vote  at  the  general  election  in  the 
fall  of  that  year.  The  act  provided  that  if  the  popular 
vote  was  favorable  the  Erie  and  Oswego  canals  should 
be  deepened  to  a  depth  of  not  less  than  nine  feet,  and 
the  Champlain  canal  to  seven  feet.  The  plan  of  improve- 
ment, commonly  known  as  the  Seymour  plan,  was  ap- 
proved by  a  decisive  vote. 

It  soon  became  evident  that  the  contemplated  expendi- 
ture would  never  accomplish  adequate  results.  The  con- 
tracts which  had  been  let  were  closed,  and  settlements  were 
made  with  the  contractors.  Charges  of  fraud  and  misap- 
propriation of  funds  grew  out  of  these  adjustments,  which 
led  to  the  appointment  of  an  investigating  commission,  and 
eventually  to  the  designation  by  Governor  Roosevelt  of 
special  counsel  to  assist  the  attorney-general  in  the  insti- 
tution and  prosecution  of  such  criminal  proceedings  as 
should  be  warranted  by  the  testimony  taken  by  the  com- 
mission. Governor  Roosevelt  reported  to  the  legislature  of 
1900  that  the  able  counsel  assigned  by  him  deemed  criminal 
prosecutions  inadvisable  and  impracticable.  There  had  been 
numerous  instances  of  apparently  unjustifiable  favoritism 
to  contractors  and  of  improvident  agreements — not,  how- 
ever, of  a  criminal  character,  although  they  subjected  the 
State  to  large  pecuniary  loss.  As  the  Governor  said :  "The 
delinquency  shown  justified  public  indignation,  but  it  did 
not  aflFord  ground  for  criminal  prosecution." 

The  national  government  had  meanwhile  deepened  the 
lake  channel  from  Chicago  to  Buffalo  to  twenty  feet,  and 
the  Hudson  river  to  twelve  feet.     The  Canadian  govern- 


STATE   OF   NEW   YORK  291 

ment  had  designed  an  enlargement  of  its  canal  system  be- 
tween Chicago  and  Montreal  from  twelve  to  twenty  feet. 
The  project  of  a  canal  from  Georgian  Bay  direct  to  Mon- 
treal, and  from  the  river  St.  Lawrence  to  the  Atlantic 
Ocean,  was  also  under  discussion  in  Canada  and  Great 
Britain.  These  things  made  action  by  the  State  impera- 
tive. At  the  suggestion  of  Governor  Black  the  legislature 
of  1898  appointed  a  special  commission  which  reported 
January  25,  1900,  that  the  leading  cause  of  the  decline  of 
the  commerce  of  New  York  was  the  differential  rate  on  all 
east  bound  traffic.  As  a  contributing  factor  the  report 
mentioned  excessive  terminal  charges.  The  commission 
advocated  the  abandonment  of  canal  improvement  upon 
the  nine  million  dollar  plan  as  utterly  inadequate.^ 

On  March  8,  1899,  Governor  Roosevelt  appointed  a  com- 
mittee to  consider  the  whole  canal  question  and  report  upon 
the  proper  policy  to  be  pursued  by  the  State.  The  report  of 
this  committee  (January  15,  1900)  assumed  at  the  outset 
that  unless  freight  could  be  carried  by  canal  at  lower  figures 
than  those  at  which  railroads  could  profitably  transport  it 
the  canals,  whatever  had  been  their  past  value,  might  well 
be  abandoned.  It  then  proceeded  to  argue  that  the  canals 
would  be  able  to  carry  freight  at  minimum  rates.  Water 
transportation,  declared  the  committee,  is  inherently  cheaper 
than  rail  transportation.  Such  is  the  experience  of  different 
countries;  on  the  continent  of  Europe,  canals,  far  from 
being  decadent,  have  been  constantly  enlarged  and  im- 
proved. New  York  State  possesses  exceptional  topograph- 
ical advantages  which  it  would  be  folly  not  to  utilize,  but 


""To  offset  all  the  advantages  enjoyed  by  New  York  City  by  an 
inland  discriminating  rate  against  New  York,  is  an  arbitrary  imposi- 
tion of  a  burden  upon  all  the  export  products  of  the  territory  tributary 
to  New  York,  in  the  competition  to  which  they  are  subjected  in  the 
markets  of  the  world.  Such  an  imposition  is  not  only  indefensible 
from  any  standpoint  of  legitimate  competition ;  it  is  not  only  an  injury 
to  the  Harbor  and  to  the  State;  it  is  a  crime  against  the  commerce 
gi  the  nation"  (Report  of  Governor  Blank's  Commission,  2), 


292  CONSTITUTIONAL   HISTORY 

she  has,  nevertheless,  to  encounter  competition  for  the 
western  grain  trade  from  ports  on  the  Gulf  of  Mexico  and 
from  Canada,  as  well  as  from  shorter  all-rail  routes  to  the 
Atlantic  seaboard.  Besides  the  carrying  of  grain  and  lum- 
ber, which,  when  the  Erie  canal  was  first  dug,  was  expected 
to  be  its  chief  function,  recent  developments  in  the  iron 
trade,  due  to  the  discovery  of  an  almost  inexhaustible  body 
of  iron  ore  in  the  upper  lake  region,  justified  belief  that 
with  an  adequate  waterway  between  Lake  Erie  and  the 
Hudson  river  and  the  prevailing  cheap  rates  upon  the 
lakes,  the  iron  industry  might  be  centralized  within  this 
State;  and  with  the  utilization  of  electric  power  from 
Niagara,  western  New  York  should  become  a  manufactur- 
ing district  of  the  first  importance. 

According  to  the  committee  the  alternative  seemed  to 
be  either  to  leave  the  canals  as  they  were,  which  was  virtu- 
ally to  abandon  them — a  thing  forbidden  by  the  constitu- 
tion— or  to  enlarge  them  sufficiently.  It  warmly  advocated 
the  latter  policy.  The  State,  it  said,  ought  not  to  ignore 
its  wonderful  natural  advantages  and  cut  off  its  chance 
of  keeping  within  itself  the  route  that  would  produce  the 
minimum  freight  rate.  The  ship  canal  project  was  pro- 
nounced impracticable  and  prohibitive  in  expense.  The 
committee  estimated  that  by  an  expenditure  of  sixty-two 
million  dollars,  a  one  thousand  ton  barge  canal  could  be 
built,  and  this  project  it  favored. 

The  committee  declared  that  although  some  lateral 
canals  had  proven  unprofitable,  the  reverse  was  true  as  to 
the  Erie,  which  had  *'pai^  iiito  the  State  more  money  by 
many  millions  of  dollars  than  had  been  spent  upon  it  in 
the  aggregate  for  any  and  all  purposes  whatsoever."  The 
revenues  collected  from  this  canal  down  to  the  date  of  the 
stoppage  of  tolls  were  alleged  to  have  exceeded  all  sums 
paid  out  upon  it  for  any  purpose  whatsoever  by  the  sum 
of  $42,599,718.  The  canal  debt  attained  its  maximum  in 
1844,  being  then  3.8  per  cent,  of  assessed  valuation  in  th? 


STATE   OF   NEW   YORK  293 

State;  a  corresponding  percentage  in  1900  would  amount 
to  nearly  one  hundred  and  ninety  million  dollars^  or  double 
the  expenditure  which  the  committee  would  propose.  The 
ability  of  the  State  to  cope  with  the  new  undertaking  was 
undoubted ;  it  would  require  the  imposition  of  a  small  State 
tax,  sixty  per  cent,  of  which  would  fall  upon  the  city  of 
New  York.  The  committee  therefore  recommended  the 
construction  of  a  barge  canal  from  Lake  Erie  to  the  Hud- 
son, from  Lake  Ontario  to  the  Erie  canal,  and  from  Cham- 
plain  to  the  Hudson  river,  with  a  prism  generally  twelve 
feet  in  depth,  and  a  width  of  seventy-five  feet  at  the  bottom; 
and  proposed  that  the  route  of  the  Erie  canal  be  along  the 
Mohawk  river  through  Oneida  Lake  and  through  Seneca 
and  Clyde  rivers. 

This  report  was  submitted  to  the  legislature  by  the 
Governor  with  a  special  message  on  January  25,  1900.  It 
proposed  a  policy  entailing  ''very  heavy  expenditure,  which 
could  only  be  justified  by  success,  and  which  there  would 
be  no  warrant  in  adopting  save  for  the  weightiest  and  most 
unanswerable  reasons."  The  Governor  declared  the  reason- 
ing unanswerable  and  the  policy  "not  merely  wise  and 
proper,  but  indispensable,  if  the  future  development  of  the 
State  were  to  in  any  way  correspond  with  its  past."  Act- 
ing upon  the  committee's  recommendations  and  the  Gover- 
nor's message,  the  legislature  appropriated  the  sum  of 
$200,000  for  surveys  and  estimates  of  the  cost  of  enlarge- 
ment or  improvement.  The  report  of  the  State  engineer 
and  surveyor  giving  the  results  of  these  surveys  and  esti- 
mates was  submitted  to  the  legislature  by  Governor  Odell 
with  a  special  message  in  March,  1901. 

Governor  Odell  wisely  commended  the  counting  of  the 
cost.  He  called  attention  to  the  fact  that  the  loss  of  canal 
traffic  was  not  ascribable  altogether  to  inadequate  canal 
facilities,  that  terminal  charges  and  dock  facilities  were 
not  so  favorable  at  the  port  of  New  York  as  at  other  ports, 
and   he   concluded   by   recommending  that   "the   question 


294  CONSTITUTIONAL   HISTORY 

of  improving  the  canals  along  the  line  of  the  act  of  1895 
be  submitted  to  the  people  at  the  following  election."  In 
his  message  in  1902  he  again  called  attention  to  the  sub- 
ject. The  canals,  he  then  reminded  the  legislature,  were 
absolutely  closed  for  at  least  five  months  of  the  year, 
during  which  time  manufactories  were  dependent  upon 
railroads.  Were  it  not  for  the  fact  that  imports  followed 
to  a  great  extent  the  line  of  exports,  canal  improvement 
would,  he  declared,  deserve  little  consideration. 

In  his  annual  message  in  1903,  Governor  Odell  entered 
upon  an  extensive  consideration  of  the  subject.  *' Neither 
the  lowering  nor  the  abolition  of  tolls  upon  the  canals 
brought,  as  was  hoped,  an  increase  of  traffic."  Railroad 
transportation  was  more  costly,  yet  shippers  were  willing 
to  pay  the  increased  cost.  ''Is  it  because  of  greater  facili- 
ties and  more  prompt  shipment  at  other  outports  that  this 
decline  in  canal  traffic  is  due,  and  will  an  enlarged  canal  win 
back  the  commerce  which  we  have  lost?"  He  briefly  re- 
viewed the  history  of  the  recent  movements  for  canal  ex- 
tension, and  strongly  urged  upon  the  legislature  the  ne- 
cessity for  ''immediate  attention  to  this  important  problem." 

The  legislature  of  that  year  provided  for  the  construc- 
tion of  a  one  thousand  ton  barge  canal  at  a  maximum  cost 
of  $101,000,000,  and  directed  that  the  act  be  submitted  to 
the  people  at  the  general  election  in  November,  1903. 
The  popular  vote  was  overwhelmingly  favorable,  being 
673,010  for,  to  427,698  opposed.^  The  belief,  particu- 
larly in  New  York  City  and  in  Buffalo,  was  widespread 
that  nothing  but  a  deep  and  broad  waterway  from  lake  to 
ocean  could  save  the  commercial  prestige  of  the  State  and 
prevent  her  from  lapsing  into  a  secondary  position.  In 
1903  the  legislature  voted  favorably  upon  a  resolution  to 
amend  the  constitution  by  extending  from  eighteen  to  fifty 

'  In  16  counties  there  was  a  majority  in  favor.  The  favorable 
majority  in  New  York  county  was  223,729,  in  Kings  county,  142,377. 


STATE  OF  NEW  YORK  ^95 

years  the  period  during  which  bonds  issued  for  State  pur- 
poses might  run,  and  after  approval  by  the  legislature  of 
1905  this  amendment  was  ratified  by  the  people  at  the 
general  election  in  the  latter  year. 


296  CONSTITUTIONAL   HISTORY 


CHAPTER    XVI 

TAXATION ITS    PURPOSES^ CHARACTER    OF    TAXES PROVI- 
SIONS  OF    STATE    CONSTITUTIONS   REFERRING  TO   TAXA-. 

TION LOTTERIES    FORBIDDEN    BY    FIRST    CONSTITUTION 

EARLY  METHODS  OF  TAXATION ^THE  GENERAL  PROP- 
ERTY TAX ESCAPE  OF  PERSONALTY  FROM  ASSESSMENT 

TENDENCIES  IN  MODERN  TAXATION INEFFICACY  OF 

THE  PERSONAL  TAX INDIRECT  TAXATION  SUPERSED- 
ING DIRECT  TAXATION  FOR  STATE  PURPOSES DIFFER- 
ENTIATION   BETWEEN    SOURCES    OF    STATE    AND    LOCAL 

REVENUE STATE  TAXES  ON  CORPORATIONS TRANSFER 

TAXES LIQUOR  TAX STOCK  TRANSFER  TAX TAXA- 
TION OF   SPECIAL   FRANCHISES SECURED  DEBTS  TAX 

STING   OF   TAXATION   IS   WASTEFULNESS EARLY   STATE 

TAXES STATE   DEBTS FEDERAL   DIRECT   TAX    OF    1 86 1 

RECENT    CONSTITUTIONAL   AMENDMENTS    REGARDING 

DEBTS HIGHWAY   IMPROVEMENTS. 

Ruskin  speaks  of  the  preacher  as  having  in  his  Sunday 
sermon  ^'thirty  minutes  to  raise  the  dead  in/'  Almost  as 
ambitious  and  as  equally  hopeless  may  be  the  effort  to 
convey  in  a  brief  chapter  any  intelligible  idea  about  taxa- 
tion. "The  right  to  tax,"  it  has  been  well  said,  "is  not 
granted  by  the  constitution,  but  of  necessity  underlies  it, 
because  government  could  not  exist  or  perform  its  func- 
tions without  it."  ^  Taxes  are  levied  for  the  revenue  neces- 
sary for  the  maintenance  of  government.  They  cannot 
properly  be  imposed  to  benefit  one  part  of  the  community 
at  the  expense  of  another,  or  to  promote  private  enterprises. 


^People  ex  rel.  Hatch  v.  Reardon,  184  N.  Y.,  431, 


STATE   OF   NEW   YORK  297 

What  constitutes  the  public  purposes  which  justify  a  tax 
is  often,  however,  a  debatable  proposition.  Taxes  are 
commonly  divided  into  direct  and  indirect.  The  poll,  or 
capitation  tax,  which  led  to  the  insurrection  under  Wat 
Tyler,  is  an  illustration  of  a  direct  tax,  whereas  the  tariff 
levied  upon  imported  goods  by  the  United  States  govern- 
ment, which,  although  paid  by  the  importer,  ultimately 
falls  upon  the  consumer,  is  a  clear  type  of  indirect  taxation. 
The  incidence  of  taxation  has  an  important  bearing  upon 
the  question  whether  a  tax  is  direct  or  indirect.  The  litera- 
ture of  taxation  is  filled  with  subtle  and  curious  analyses 
regarding  the  shifting  and  incidence  of  taxation.  What  is 
a  direct  tax,  was  a  question  asked  by  Mr.  Rufus  King  in 
the  convention  of  1787,  but  not  answered.  Under  the 
power  assumed  to  have  been  possessed  by  it  Congress  on 
August  15,  1894,  levied  a  tax  upon  the  income  of  real 
and  personal  property,  and  in  the  spring  of  1895,  in  the 
well  known  income  tax  cases,  the  Supreme  Court  of  the 
United  States,  by  a  divided  vote,  held  the  tax  unconsti- 
tutional. According  to  majority  opinion  a  tax  on  the 
rents  or  income  of  real  estate  was  a  direct  tax  and  was 
unconstitutional  because  not  laid  upon  the  principle  of 
uniformity.  Upon  a  re-hearing,  the  Court,  by  a  vote  of 
5  to  4,  besides  reaffirming  its  position  that  taxes  upon 
real  estate  were  direct  taxes  and  inhibited  by  the  consti- 
tution, decided  that  the  tax  on  personal  property  or  its 
income  was  a  direct  tax,  and  unconstitutional,  as  it  had 
not  been  apportioned  among  the  several  States  according 
to  the  population. 

In  July,  1909,  Congress,  by  a  two-thirds  vote  in  each 
house,  approved  an  amendment  to  the  constitution  reading 
as  follow^s: 

"The  Congress  shall  have  power  to  lay  and  collect  taxes  on  in- 
comes, from  whatever  source  derived,  without  apportionment  among 
the  several  States  and  without  regard  to  any  census  or  enumeration," 


298  CONSTITUTIONAL  HISTORY 

This  amendment  has  been  ratified  by  all  the  States  except 
Connecticut,  Florida,  Pennsylvania,  Rhode  Island,  Utah 
and  Virginia.  It  is  the  sixteenth  amendment  to  the  con- 
stitution and  was  declared  in  force  on  February  25,  1913.^ 
As  Hamilton  declared  in  The  Federalist,  no  part  of  the 
administration  of  government  requires  such  extensive  in- 
formation or  thorough  knowledge  of  the  principles  of 
political  economy  as  the  business  of  taxation.  After  a 
century  of  unsuccessful  effort  to  compel  personal  property 
to  bear  its  statutory  share  of  taxation,  the  tendency  to 
rely  for  local  revenue  upon  the  real  estate  tax  alone  is 
now  plain.  There  has  also  for  a  quarter  of  a  century  or 
more  been  a  clear  trend  toward  the  separation  of  the 
sources  of  State  and  local  revenue. 

The  constitution  of  1777  put  no  limitation  upon  the 
taxing  power  of  the  newly  formed  State  of  New  York. 
There  is  no  reference  to  taxation  in  that  instrument  except 
in  the  preamble  setting  forth  the  Declaration  of  Independ- 
ence. The  constitution  of  1822  contained  a  negative  pro- 
vision (section  11,  Article  VII)  which  declared  that  no 
lottery  should  thereafter  be  authorized ;  that  the  legislature 
should  pass  laws  to  prevent  the  sale  of  lottery  tickets  within 
the  State  except  in  lotteries  theretofore  provided  by  law. 
Private  lotteries  had  been  illegal  from  colonial  days,  but 
public  lotteries  had  often  been  sanctioned  by  State  legisla- 
tures and  by  the  Congress  of  the  United  States.^     Two 


''The  discussion  as  to  the  advisability  of  the  sixteenth  amend- 
ment to  the  national  constitution  led  to  the  publication  of  many 
pamphlets  and  addresses.  Several  of  these  are  mentioned  by  Profes- 
sor Seligman  in  his  work  "The  Income  Tax,"  page  590. 

"There  were  hundreds  of  lotteries  for  the  building  of  schools, 
the  erection  of  bridges  and  docks,  the  repair  of  churches  and  roads, 
the  establishment  of  foundries  and  glass  works  (McMaster's  "History 
of  the  United  States,"  vol.  II,  p.  2^).  A  long  list  of  purposes  for 
which  lotteries  were  organized  is  given  in  McMaster,  vol.  I,  588,  note. 
Lincoln,  in  his  "Constitutional  History,"  gives  a  list  of  lotteries  au- 
thorized by  this  State,  vol.  HI,  pp.  35-38.  See  also  Wells'  "Theory  and 
Practice  of  Taxation,"  p.  605.    "Lotteries  were  formerly  often  relied 


STATE   OF   NEW   YORK  299 

opposing  and  irreconcilable  principles  had  prevailed  in  this 
State — one  putting  a  ban  upon  private,  the  other  permitting 
public  lotteries.  In  the  convention  of  1821  the  wisdom  of 
the  proposed  constitutional  prohibition  was  thoroughly  dis- 
cussed and  the  debate  developed  divergent  opinions.  Upon 
the  final  vote  both  Chancellor  Kent  and  Chief  Justice  Spen- 
cer opposed  the  constitutional  prohibition.  Spencer  de- 
clared that  it  was  not  appropriate  matter  for  a  constitu- 
tion; Colonel  Young,  on  the  other  hand,  would  have  in- 
cluded a  prohibition  against  horse  racing,  thus  anticipating 
the  constitution  of  1894. 

The  first  methods  of  taxation  in  the  State  were  merely 
an  evolution  of  the  Dutch  and  English  colonial  systems. 
The  Dutch  established  the  system  of  special  assessments 
for  public  improvements.  In  1683  the  first  regular  system 
of  taxation  was  adopted  by  law.  The  frequent  wars  in 
which  the  colony  was  involved  in  consequence  of  the  con- 
flicts of  Great  Britain  wilh  other  nations  of  Europe,  espe- 
cially the  French,  plunged  it  into  great  indebtedness.  These 
wars  cost  the  colony  nearly  a  million  pounds.*  The  gen- 
eral property  tax  was  in  vogue  at  the  Revolution,  not  only 
in  New  York  but  in  sister  colonies.  The  first  general  tax 
statute  was  passed  in  this  State  in  1 796.  It  was  superseded 
by  the  Act  of  1801,  and  this  by  the  Act  of  181 3,  establish- 
ing a  system  for  the  assessment  of  real  and  personal  estate 
for  taxation,  dividing  towns  and  wards  into  assessment  dis- 
tricts, and  empowering  the  county  supervisors  to  equalize 


upon  to  defray  a  portion  of  the  State  and  local  expenditures  in  this 
country,  and  are  still  used  for  that  purpose  in  two  of  our  States." 
Ely,  "Taxation  in  American  States  and  Cities,"  p.  41.  The  Continental 
Congress  in  1777  established  lotteries  to  raise  funds  for  carrying  on  the 
war,  and  sent  agents  into  all  the  States  to  sell  tickets  (Id.,  113).  The 
lotteries  authorized  by  Congress  in  the  District  of  Columbia  led  to  the 
famous  case  of  Cohens  v.  Virginia,  6  Wheaton,  257.  It  is  an  inter- 
esting fact  that  several  of  our  leading  universities,  Columbia  and  Har- 
vard in  particular,  have  benefited  by  lotteries. 
*  See  note  to  vol.  IJ,  Laws  of  1813,  523,  524. 


300  CONSTITUTIONAL   HISTORY 

valuations,  levy  taxes  and  deliver  warrants  to  collectors. 
The  Act  of  1813  was  superseded  by  the  Act  of  1823,  and 
that  in  turn  by  the  provisions  of  the  Revised  Statutes. 
The  general  characteristics  of  taxation  in  the  earlier  epoch 
were  similar  in  all  the  States:  specific  objects,  rather  than 
all  property,  were  usually  selected  for  taxation,  and  upon 
tangible  property  was  imposed  all  or  nearly  all  the  burden. 
Personalty  has  never  borne  its  fair  proportion  of  taxa- 
tion. In  185 1  Governor  Washington  Hunt  declared  in  his 
annual  message  that  a  large  share  of  personal  property 
escaped  assessment  altogether,  and  that  in  many  portions 
of  the  State  real  estate  was  estimated  by  assessors  at  less 
than  half  its  actual  value.  The  discrimination  in  favor 
of  personal  property  by  which  it  avoided  its  equitable 
share  of  local  and  State  taxes,  was  pointed  out  by  Governor 
Fenton  in  1866  and  1868;  also  by  Governor  Dix  in  1873, 
and  Governor  Cleveland  in  1884.  Assessments  of  real 
estate  in  the  various  counties  were  so  disproportionate  that 
Governor  Bouck  in  1843  recommended  the  adoption  of 
some  method  for  equalizing  valuations  among  the  several 
counties.  But  nothing  was  done  until  1859,  when  a  direct 
tax  had  to  be  imposed  to  meet  the  expenses  of  canal  enlarge- 
ment. The  legislature  of  that  year  fixed  the  tax  at  five- 
eighths  of  a  mill  upon  all  real  and  personal  property  sub- 
ject to  taxation  within  the  State,  and  at  the  suggestion  of 
Governor  Morgan  created  a  State  board  of  equalization  to 
equalize  assessments  and  taxes  among  the  different  counties. 
The  result  has  not  been  a  success.  Comptroller  Roberts, 
in  1898,  called  attention  to  the  discrepant  assessments  in 
various  counties,  although  the  same  rule  of  assessment  ap- 
plied throughout  the  State.  Real  estate  in  one  county  was 
assessed  at  fifty  per  cent,  of  its  real  value;  in  two  at  fifty- 
one  per  cent. ;  in  three  at  fifty-five  per  cent. ;  in  two  at  fifty- 
eight  per  cent. ;  in  five  at  sixty  per  cent. ;  in  one  at  sixty-two 
per  cent. ;  in  two  at  sixty-three  per  cent. ;  in  one  at  sixty-five 
per  cent.;  in  one  at  sixty-six  per  cent.;  in  one  at  sixty- 


STATE   OF    NEW   YORK  301 

seven  per  cent. ;  in  one  at  sixty-eight  per  cent. ;  in  three  at 
sixty-nine  per  cent. ;  in  twelve  at  seventy  per  cent. ;  in  four 
at  seventy-one  per  cent. ;  in  three  at  seventy-two  per  cent.  ; 
in  four  at  seventy-five  per  cent. ;  in  one  at  seventy-eight 
per  cent. ;  in  one  at  seventy-nine  per  cent. ;  in  one  at  eighty 
per  cent. ;  in  one  at  eighty-two  per  cent. ;  in  one  at  eighty- 
three  per  cent. ;  in  one  at  eighty- four  per  cent. ;  in  one  at 
eighty-five  per  cent. ;  in  one  at  ninety-two  per  cent.^  Yet 
despite  the  inevitable  imperfections  of  this  crude  system, 
the  State  still  clings  to  it,  as  it  clings  to  the  general  property 
tax,  which  year  by  year  is  becoming  almost  exclusively  a 
real  estate  tax. 

Land  should  not  be  taxed  for  State  revenue,  and  per- 
sonal property  should  be  the  subject  of  neither  State  nor 
local  taxation.  The  modern  tendency  is  to  confine  the  local 
tax  to  real  estate — not  only  because  of  the  difficulty  of  tax- 
ing personalty,  but  also  because  fiscal  science  recognizes 
the  importance  of  discriminating  between  the  sources  of 
State  and  local  revenue.  In  the  popular  mind  confusion 
often  exists  as  to  State  and  local  taxation,  yet  these  are 
as  distinct  from  each  other  as  either  is  from  Federal  taxa- 
tion. All  attempts  to  value  and  assess  personal  property 
have  proved  unsatisfactory,  and  with  the  exception  of  the 
States  of  the  Federal  Union,  almost  all  civilized  communi- 
ties long  ago  abandoned  the  notion  of  levying  taxes  upon 
personalty  as  inexpedient  and  impracticable.  Because  of 
the  difficulty  of  discovering  and  assessing  this  kind  of 
property,  the  amount  subject  to  assessment  is,  in  compari- 
son with  the  assessment  of  real  estate,  rapidly  becoming 


'"The  sixty  counties  of  the  State  had  twenty-five  different  per- 
centages of  its  value,  at  which  they  assessed  real  estate,  while  the  same 
provision  of  law  requiring  that  real  estate  should  be  assessed  at  its 
full  market  value  was  the  sworn  obligation  of  every  assessor  in  the 
State.  *  *  *  It  is  not  possible  for  any  man  or  body  of  men  to 
equalize  values  of  property  extending  over  so  wide  a  stretch  of  terri- 
tory, with  myriads  of  facts  and  conditions  to  be  taken  into  considera- 
tion in  getting  the  true  valuation," 


302  CONSTITUTIONAL   HISTORY 

negligible.  It  is  only  a  question  of  time  when  the  per- 
centage of  personal  assessments  will  be  so  small  that  such 
assessments  will  cease,  and  the  tax  fall  exclusively  upon 
real  estate. 

"Delaware,  Pennsylvania  and  Vermont  levy  no  State 
tax  on  real  estate,  while  Wisconsin  and  other  States,  fol- 
lowing her  method  of  taxing  railroads,  either  exempt  real 
estate  from  taxation  for  State  purposes,  or  contemplate  such 
action  in  the  near  future."  ^  In  his  report  of  1898  Comp- 
troller Roberts  advocated  the  abolition  of  a  State  tax  upon 
real  and  personal  estate,  and  the  raising  of  the  State's 
revenue  "from  what  we  have  come  to  call  indirect  sources, 
i.  e.,  from  sources  other  than  the  general  property  tax." 
Mr.  Horace  White,  a  recognized  authority,  in  an  introduc- 
tion to  a  translation  of  Cossa's  famous  work  upon  taxation 
says:  "There  is  a  movement  going  on  to  drop  real  estate 
from  the  list  of  State  taxables,  and  remit  it  wholly  to  the 
lesser  political  subdivisions,  the  cities,  towns  and  counties." 
The  tendency,  says  Professor  Seligman,  is  to  confine  the 
local  tax  to  real  estate.  In  some  countries,  "as  in  England 
and  Australia,  this  is  now  the  fact  by  law ;  in  some  places, 
like  the  more  developed  industrial  centers  of  the  United 
States,  it  is  now  virtually  a  fact  by  custom."  This  tendency 
"throughout  the  world  toward  reliance  for  local  revenues 
upon  the  real  estate  tax  is  not  alone  indisputable,  but  also 
in  complete  harmony  with  the  newer  theories  of  finance."  ^ 

Rome,  says  M.  Savigny,  at  the  epoch  of  her  great  con- 
quests, levied  a  capitation  tax  in  her  subject  jM-ovinces, 
but  by  degrees  various  persons  and  classes  were  exempted 
from  this  tax.  One  edict  exempted  painters.  In  Syria,  all 
under  twelve  or   fourteen,    or  over   sixty-five,    were   ex- 


•  Wells'  "Theory  and  Practice  of  Taxation,"  629. 

'The  Progress  of  Taxation  during  the  Past  Twenty-five  Years 
and  Present  Tendencies — paper  read  at  22nd  Annual  Meeting  of  the 
American  Economic  Association.  See  also  the  chapter  upon  this  sub- 
ject in  his  Essays  on  Taxation^  as  revised  and  reprinted  in  191^. 


STATE   OF   NEW   YORK  303 

empted;  at  a  later  period  all  under  twenty  and  all  unmar- 
ried females;  still  later,  all  under  twenty-five,  widows, 
nuns,  soldiers,  veterans  and  clerics;  afterward  towns  and 
whole  dioceses.  Such  a  tax  was  more  sensible  and  more 
humane  than  our  personal  property  tax,  for  the  Roman 
removed  the  burden  from  the  widow  and  the  child,  but 
that  is  precisely  where  the  operation  of  our  peculiar  laws 
imposes  the  heaviest  load.  Intangible  personal  property 
can  never  be  discovered  by  the  tax  collector,  unless  the 
tortures  of  antiquity  are  to  be  revived,  or  the  rack  and 
the  thumb  screw  again  brought  into  requisition.  Nothing 
less  cruel  than  the  methods  of  a  Claverhouse  would  enable 
an  assessor  to  find  it.  Under  an  income  tax  law  enacted 
in  England  in  1691,  Romanists  were  taxed  at  rates  double 
those  imposed  upon  Protestants.  But,  shocking  as  was 
such  injustice,  it  was  hardly  worse  than  are  laws  which, 
in  practice,  exempt  dishonesty  and  tax  truthfulness,  and 
lay  heavy  hands  on  the  widow  and  orphan. 

Again  and  again  during  the  last  thirty  years  the  in- 
equality, immorality  and  stupidity  of  the  personal  property 
tax  have  been  proved.  It  has  been  styled  a  tax  upon 
ignorance  and  honesty;  no  one,  it  has  been  said,  need  pay, 
unless  deterred  from  evasion  by  a  scrupulous  sense  of 
honor;  its  defects  and  oppressions  have  been  denounced 
as  too  glaring  to  be  longer  tolerated.  The  statutes  have 
been  described  as  "old  and  rickety,"  "passed  m  a  bygone 
generation";  the  system  as  a  "farce  and  a  humbug,"  a  "re- 
proach to  the  State,"  "a  dismal  failure,"  "an  outrage  upon 
the  people,  a  disgrace  to  the  civilization  of  the  nineteenth 
century,  and  worthy  only  of  an  age  of  mental  and  moral 
darkness  and  degradation,  Vhen  the  only  equal  rights  were 
those  of  the  equal  robber.'  "  Hon.  George  H.  Andrews, 
once  commissioner  of  taxes  in  the  city  of  New  York,  in  a 
letter  published  years  ago,  asserted  that  honestly  to  assess 
personal  property  it  would  be  necessary  to  do  four  things ; 
first,  to  amend  the  constitution  of  the  State;  second,  to 


304  CONSTITUTIONAL   HISTORY 

amend  the  constitution  of  the  United  States;  third,  to 
amend  the  constitution  of  human  nature;  and  fourth,  to 
amend  the  constitution  of  things.  Despite  all  that  has 
been  so  forcibly  said  against  the  assessment  of  personal 
property,  and  despite  the  abandonment  of  this  sort  of  tax 
by  all  the  rest  of  the  civilized  world,  we  still  adhere  to  it, 
and  every  few  years,  by  the  enactment  of  severe  penalties, 
some  State  makes  a  ridiculous  effort  to  discover  what  per- 
sonal property  its  citizens  own,  but  of  course  fails.  The 
system  of  "guessing"  adopted  by  local  assessors  in  this 
State,  unjust  and  illogical  as  it  is,  is  more  sensible  and  prac- 
tically more  successful  in  reaching  property,  than  the  ab- 
surd and  intolerable  method  of  "listing  bills,"  or  "doom- 
ing" the  reluctant  citizen  to  pay  upon  a  certain  assessment 
and  depriving  him  of  all  right  of  appeal.  Outside  of  a 
few  persons  as  to  whom  the  guess  of  New  York  assessors 
is  so  low  that  they  think  it  politic  not  to  complain,  and  of 
the  few  with  a  nice  sense  of  honor,  the  tax  upon  personal 
property  in  this  State  is  paid,  as  a  New  Jersey  commission 
some  years  ago  reported  to  be  the  case  in  that  State,  by 
the  estates  of  decedents,  widows,  orphans,  idiots  and  luna- 
tics.^ 

Although  in  the  city  of  New  York,  since  consolidation, 


'"The  personal  property  tax  is  a  farce.  It  falls  inequitably  upon 
the  comparatively  few  who  are  caught.  The  burden  it  imposes  upon 
production  is  out  of  all  proportion  to  the  revenue  it  produces.  Year 
after  year  state  and  local  assessing  boards  have  denounced  it  as 
impracticable  in  its  workings  and  unjust  in  its  results. 

************ 

"But  it  is  not  a  farce  to  those  who  are  fully  assessed.  These  are 
chiefly  the  widows  and  orphans  who  are  caught  when  their  property  is 
listed  in  the  probate  court,  retail  merchants  and  others,  incorporated  or 
unincorporated,  with  stocks  of  goods,  and  the  small  investors  who  are 
not  skillful  enough  to  make  non-taxable  investments.  The  tax  of  i^ 
per  cent,  is  equivalent  to  an  income  tax  of  25  per  cent,  on  a  6  per  cent, 
investment.  A  general  income  tax  of  10  per  cent,  would  create  a  revo- 
lution— yet  we  take  a  quarter  of  their  income  or  more  from  the  most 
helpless  class  in  the  community."  Report  of  Fassett  Investigating 
C^ommitte^.    Se?  also  Seligman,  "Essays  on  Taxation,"  61,  62, 


STATE   OF   NEW   YORK  305 

the  assessed  valuation  of  real  estate  has  increased  year  by 
year,  the  total  of  assessable  personalty  keeps  contantly  de- 
creasing.^ Nor  must  it  be  assumed  that  as  strenuous  effort 
is  not  made  in  the  metropolis  to  assess  personal  estate  as 
in  other  cities.  The  president  of  the  department  of  taxes 
and  assessments  in  New  York  City  in  a  report  to  the  mayor, 
July  I,  1909,  declared  that  although  the  assessment  of  per- 
sonalty was  the  more  difficult  the  larger  the  city,  personal 
property  assessed  in  the  metropolis  formed  a  larger  pro- 
portion of  the  total  assessment  than  in  other  large  cities 
of  the  State.  In  New  York  City,  he  said,  personal  property 
constituted  8.2  per  cent,  of  the  whole;  in  Buffalo  8.1  per 
cent. ;  in  Rochester  5.22  per  cent. ;  in  Syracuse  5.22  per  cent. 
The  State  comptroller's  reports  prove  the  inability  to 
reach  personalty  for  assessment  outside  of  cities.  The  valu- 
ation of  real  estate  increased  between  the  years  1859  and 
1904  more  than  six  times:  whereas,  allowing  for  all  dif- 

'The    aggregate    assessments    of    personalty  and    of    real    estate 

within  the  city  of  New  York,  year  by  year,  since  the  formation  of  the 

greater  city  are  as  follows : 

Year                                        Personalty  Real  Estate 

1898 $510,757,570  $1,856,567,923 

1899 545,906,565  2,932,445464 

1900 485,575,598  3,168,557,700 

1901 550,192,612  3,237,778,261 

1902 526,400,139  3,332,647,579 

1903 680,866,092  4,751,550,826 

1904 625,078,878  5,015,463,779 

190S 690,561,926  5,221,582,301 

1906 567,306,940  5,738,487,24s 

1907 554,889,871  6,240,480,602 

1908 435,774,611  6,722,415,789 

1909 443,320,855  6,807,179,704 

1910 372,644,825  7,044,192,674 

1911 357,923,123  7,858,840,164 

1912 342,963,540  7,861,898,890 

1913 325,421,340  8,006,647,861 

1914 340,295,560  8,049,859,912 

These  figures  are  taken  from  the  Report  of  the  Commissioners  of 

Taxes  and  Assessments  of  the  City  of  New  York  for  the  year  ending 

March  31,  1914. 


3o6  CONSTITUTIONAL   HISTORY 

ferences  in  regard  to  the  property  treated  as  personalty 
in  1859  and  1904,  the  personalty  assessment  in  1859  was 
little  less  than  half  of  that  of  1904.  While  there  is  an 
increase  in  the  real  estate  valuations  year  after  year,  there 
is  an  actual  decrease  in  personalty  assessments,  and  a  uni- 
form decrease  relatively.  The  total  amount  of  real  estate 
assessed  throughout  the  State  in  19 13  was  upwards  of 
$10,960,000,000;  of  personalty,  only  $555,000,000.  The 
futility  of  the  effort  to  tax  personalty  is  evident.  The 
local  tax  should  be  limited  to  real  estate,  and  the  general 
property  tax  discontinued. 

Until  recently  indirect  taxation  for  State  purposes 
had,  in  fact,  virtually  superseded  the  direct  tax.  The  de- 
sirability of  separating  State  from  local  revenues  was 
pointed  out  some  years  ago  by  Professor  Seligman,  in  his 
"Essays  upon  Taxation,"  in  the  following  language : 

"If  we  can  raise  the  entire  State  revenue  from  some  other  sources 
than  the  general  property  tax,  we  shall  accomplish  three  great  results : 
In  the  first  place,  the  unseemly  quarrels  between  the  counties  (as  to 
equalizing  assessments)  will  cease.  In  the  second  place,  since  the  bur- 
dens of  the  farmer  will  be  diminished  by  the  suppression  of  the  State 
tax  on  property,  he  will  no  longer  feel  that  he  is  paying  the  city  man's 
share,  and  he  will  listen  with  greater  readiness  to  a  proposition  to 
divide  the  purely  local  burdens  more  equitably.  Third,  if  we  raise  the 
State  revenues  entirely  through  the  so-called  'indirect'  taxes  on  per- 
sonalty in  the  shape  of  corporation  taxes,  inheritance  taxes  and  taxes 
on  other  forms  of  securities,  it  will  be  a  far  simpler  task  to  bring  about 
an  adjustment  of  local  revenues  on  the  basis,  not  of  a  general  property 
tax,  but  of  a  tax  on  real  estate,  together  with  a  few  specific  taxes  on 
the  elements  of  taxable  ability  neglected  by  the  State  law." 

While,  as  will  be  seen,  the  State  has  not  been  able  to 
raise  all  revenue  from  indirect  taxation,  without  resort 
to  the  direct  tax,  it  has  initiated  such  a  policy,  and  has  es- 
tablished a  corporation  tax,  a  transfer  tax,  an  excise  tax, 
a  mortgage  tax,  a  stock  transfer  tax,  and  a  secured  debts 
tax. 

The  policy  of  differentiating  the  sources  of  local  and 
State  revenues  began  in  the  year  1880,  when  New  York 


STATE   OF    NEW   YORK  307 

passed  its  first  law  imposing  a  license  or  franchise  tax  upon 
corporations  for  State  purposes  only.  This  was  soon  fol- 
lowed by  a  law  requiring  each  corporation  organized  under 
the  statutes  of  the  State  to  pay  to  the  State  treasurer  an  or- 
ganization tax  of  one-eighth  of  one  per  cent,  upon  its  capital 
stock, — a  tax  subsequently  reduced  to  one  twentieth  of  one 
per  cent.  A  few  years  later  a  license  tax  was  imposed 
upon  foreign  corporations  for  the  privilege  of  doing  busi- 
ness within  the  State.  The  system  of  franchise  taxes 
upon  corporations  has  been  amended  and  re-amended> 
so  that  to-day  practically  all  classes  of  corporations,  both 
domestic  and  foreign,  pay  an  annual  tax  based  upon  the 
amount  of  their  capital  stock  employed  within  this  State.^^ 
Corporations  and  associations  engaged  in  transportation 
or  transmission  pay  an  annual  excise  tax  or  license  fee 
predicated  upon  gross  earnings  within  the  State,  exclusive 
of  earnings  from  interstate  business. 

Elevated  and  surface  railroads  not  operated  by  steam 
are  taxed  one  per  cent,  upon  gross  earnings,  and  three 
per  cent,  upon  dividends  in  excess  of  four  per  cent,  upon 
the  actual  amount  of  paid  up  capital.  Waterworks  cor- 
porations, gas  companies,  electric,  steam-heating,  lighting 
and  power  companies,  pay  an  annual  tax  of  one-half  of  one 
per  cent,  upon  gross  earnings  within  the  State,  and  three 
per  cent,  upon  dividends  declared  in  excess  of  four  per  cent, 
upon  their  paid  up  capital.  Insurance  corporations  pay 
an  annual  tax  of  one  per  cent,  on  the  gross  amount  of  pre- 
miums received  in  any  one  year ;  trust  companies,  an  annual 
tax  of  one  per  cent,  on  capital  stock,  surplus  and  undivided 
profits;  savings  banks,  one  per  cent,  on  surplus  and  undi- 
vided earnings;  and  foreign  bankers,  five  per  cent,  on  the 
amount  of  interest  or  compensation  of  any  kind  earned 
and  collected  on  money  loaned,  used  or  employed  within 
the  State.     All  such  corporations  are  exempted  from  local 

^*The  tax  upon  foreign  companies  is  called  a  license,  upon  domes- 
tic corporations,  a  franchise,  tax. 


3o8  CONSTITUTIONAL   HISTORY 

taxation  for  State  purposes  on  personal  property.  Fran- 
chise taxes  upon  corporations,  although  at  first  obstinately 
resisted,  have  been  declared  valid  by  the  Supreme  Court 
of  the  United  States.  The  expense  of  collection  is  rela- 
tively small.  But  the  system  needs  some  clarification.  The 
law  has  been  declared  "extremely  and  needlessly  compli- 
cated. Few  business  men  understand  it  and  lawyers  are 
frequently  puzzled  by  its  provisions.  A  tax  of  this  kind 
paid  by  thousands  of  business  corporations,  many  of  them 
small,  ought  to  be  so  simple  that  any  officer  of  the  corpo- 
ration could  make  out  the  report  and  know  exactly  frotn 
its  books  what  the  tax  ought  to  be  and  will  be." 

In  1885  the  State  initiated  a  system  of  inheritance  or 
transfer  taxes  upon  property  passing  by  bequest,  devise  or 
by  reason  of  intestacy.  This  system  has  become  a  source 
of  considerable  annual  revenue.  No  community  allows  a 
property  owner  to  devise  or  bequeath  his  property  un- 
trammeled  by  State  regulation.  In  Anglo-Saxon  law  the 
full  right  to  make  a  will  dates  back  only  to  the  time  of 
Henry  VIII.  Transfer  taxes  are  levied  upon  the  privilege 
of  transmitting  or  receiving  property  and  not  upon  the 
property  itself,  and  are  analogous  to  license  or  franchise 
taxes,  which  are  taxes  upon  privileges,  not  upon  property. 
Legislation  imposing  a  tax  upon  mortuary  transfers  of 
property  which  has  long  been  in  vogue  in  England,  and 
was  adopted  in  Pennsylvania  in  1826  and  in  Louisiana  in 
1828,  has  become  quite  general  throughout  the  United 
States.  Adam  Smith,  who  classes  such  taxes  among  the 
few  that  may  properly  be  levied  upon  capital,  traces  them 
back  to  the  days  of  Augustus  Caesar.  The  imposition  of 
such  taxes,  especially  when  they  fall  upon  transfers  to 
strangers  or  collateral  relatives,  is  not  resented. ^^ 


""The  inheritance  tax  in  one  form  or  another  has  come  to  stay, 
and  new  States  are  being  added  every  year  to  the  list  of  those  which 
have  adopted  it.  Five  years  ago  it  was  found  in  only  nine  States  of 
the  Union — Pennsylvania,  Maryland,  Delaware,  New  York,  West  Vir- 


STATE   OF   NEW   YORK  309 

The  inheritance  tax  imposed  by  Congress  at  the  out- 
break of  the  Spanish- American  War  in  1898  was  a  progres- 
sive tax  upon  the  principle  of  Sir  William  Harcourt's  gradu- 
ated death  duties,  which  became  law  in  England  in  1894. 
Its  constitutionality  was  sustained  by  the  Supreme  Court 
of  the  United  States  (Knowlton  v.  Moore,  178  U.  S.,  41). 

In  1898  Comptroller  Roberts  advocated  a  progressive 
inheritance  tax  in  this  State.  It  was  favored  in  1891  by 
Governor  Hill,  who  pronounced  it  ''fair  and  just,  especially 
in  view  of  the  fact  that  personal  property  under  existing 
methods  almost  entirely  escapes  taxation  during  the  life 
of  its  owner."  At  an  extra  session  in  June,  19 10,  the  legis- 
lature of  this  State,  at  the  instance  of  Governor  Hughes, 
passed  such  a  law.  But  this  measure  was  too  drastic,  and 
the  graduated  rates  too  heavy,  as  was  quickly  evinced  by 
the  efforts  of  large  property  owners  to  escape  the  effects 
of  the  law  through  change  of  residence.  In  the  year  191 1 
the  rates  of  19 10  were  cut  almost  in  half.  The  tax  was 
mitigated  but  the  progressive  principle  of  taxation  was  not 
abandoned. 

Progressive  taxation  brings  emphatically  into  the  fore- 
ground of  discussion  the  question  of  the  power  of  the  State 
over  individual  or  private  property. ^^     There  is  perhaps 


ginia,  Connecticut,  Massachusetts,  Tennessee,  and  New  Jersey.  During 
the  first  half  of  1893  Ohio,  Maine,  California,  and  Michigan  were  added 
to  the  list,  though  the  Michigan  law  was  afterwards  annulled  because 
of  an  unusual  provision  in  the  State  constitution  which  was  not  com- 
plied with.  In  1894  Louisiana  revived  her  former  tax  on  foreign  heirs ; 
Minnesota  adopted  a  constitutional  amendment  permitting  a  progressive 
inheritance  tax  which  has  not  yet  been  given  effect  by  the  legislature; 
and  Ohio  added  to  her  collateral  inheritance  tax  a  progressive  tax  on 
direct  successions.  In  1895  progressive  inheritance  taxes  were  adopted 
in  Illinois  and  Missouri,  and  an  old  proportional  tax  was  revived  in 
Virginia ;  and  last  year  Iowa  adopted  in  part  the  inheritance  tax  recom- 
mendation of  her  revenue  commission."  Wells,  "Theory  and  Practice 
of  Taxation,"  621,  622,  quoting  Max  West,  in  North  American  Review, 
May,  1897,  625. 

"Mill  claims  that  the  right  of  bequest  is  an  attribute  of  prop- 
erty, yet  admits  that  it  may  be  restricted  as,  in  fact,  it  often  has  been, 


310  CONSTITUTIONAL   HISTORY 

no  point  at  which  the  right  of  the  commonwealth  to  tax 
property  passing  at  death  may  be  denied,  once  the  power 
of  taxation  is  conceded.  John  Stuart  Mill,  although  an  op- 
ponent of  graduated  income  taxes  as  taxes  upon  industry 
and  commerce,  favored  progressive  inheritance  taxes  as  just 
and  expedient.  As  Mr.  Justice  White  said  in  Knowlton 
V.  Moore,  a  number  of  authoritative  thinkers  and  economic 
writers  regard  the  progressive  tax  as  "more  just  and  equal 
than  a  proportional  one." 

In  1896  the  State  established  a  new  policy  in  enacting  a 
law  recommended  by  Governor  Morton,  embodying  "the 
best  features  of  the  liquor  law  in  successful  operation  in 
the  various  States,  with  a  consistent  aim  towards  the  re- 
duction of  the  number  of  saloons  in  this  State."  A  State 
Department  of  Excise  was  created  and  placed  under  the 


especially  by  limiting  the  amount  any  legatee  may  acquire.  Mill  more 
readily  concedes  the  right  of  the  State  to  restrict  inheritance,  and  its 
right  to  limit  the  taking,  rather  than  the  giving  of  property  by  will. 
Few  writers  have  given  scientific  definitions  of  property,  although  the 
matter  of  ownership,  acquisition  and  transmission  is  the  subject  of 
repeated  discussion.  The  institution  of  property,  according  to  Mill, 
"when  limited  to  its  essential  elements,  consists  in  the  recognition  in 
each  person  of  a  right  to  the  exclusive  disposal  of  what  he  or  she 
have  (sic)  produced  by  their  own  exertions,  or  received  either  by  gift 
or  by  fair  agreement  without  force  or  fraud  from  those  who  produced 
it" — a  definition  needing  many  limitations.  There  is  a  degree  of  truth 
in  Mirabeau's  assertion  that  private  property  is  goods  acquired  by  virtue 
of  the  laws.  Property  and  government  are  in  a  sense  correlatives. 
There  can  be  no  absolute  right  of  ownership,  acquisition  or  transmis- 
sion, independent  of  law. 

That  the  right  to  inherit  and  the  right  to  devise  are  not  consti- 
tutional and  may  be  taken  away,  was  asserted  by  Vice-President  Mar- 
shall in  April,  1913.  His  statement  was  challenged  by  some  lawyers, 
while  approved  by  others.  See  Bench  and  Bar,  May,  1913,  p.  88. 
"Vested  Rights— a  Refutation,"  by  Cyril  F.  Dos  Passos,  N.  A.  R.,  July, 
I9I3>  P-  50j  quoting  the  opinion  of  Surrogate  Fowler,  in  Matter  of 
Gedney,  that  "the  right  to  dispose  of  property  after  death  is  a  natural 
and  inherent  right  of  mankind  which  cannot  be  taken  away  by  the 
State."  Blackstone,  on  the  contrary,  declares  the  power  to  make  a 
will  and  the  power  to  inherit  to  be  "creatures  of  civil  or  municipal 
law."  There  was  a  time  in  the  Roman  law  when  these  so-called  rights 
were  not  recognized. 


STATE   OF   NEW   YORK  311 

supervision  of  a  commissioner  appointed  by  governor  and 
senate.  Local  boards  and  commissioners  of  excise  were 
abolished.  All  certificates  authorizing  the  sale  of  intoxicat- 
ing liquors  were  to  be  issued  either  by  the  State  commis- 
sioner or  by  special  deputy  commissioners  in  certain  coun- 
ties, or  by  county  treasurers.  One-third  of  all  net  revenue 
from  liquor  taxes,  fines  and  penalties,  was  to  be  paid  into 
the  State  treasury,  and  the  remaining  two-thirds  were  to 
go  to  the  city  or  town  in  which  the  business  was  carried 
on.  These  revenues  were  subsequently  apportioned  half 
to  the  State  and  half  to  the  locality.  The  imposition  and 
collection  of  this  tax  have  greatly  enlarged  the  revenue 
from  the  liquor  traffic,  while  centralization  of  the  adminis- 
tration has  not  proven  unsatisfactory.  This  legislation, 
as  the  Governor  said,  marked  the  beginning  of  a  new  era 
in  the  State  in  the  regulation  of  the  liquor  traffic.  It  was 
a  radical  departure  from  the  traditional  policy,  which  had 
considered  the  regulation  and  sale  of  liquor  matters  of 
purely  local  jurisdiction.  The  law  imposed  severe  penalties 
for  the  sale  of  liquors  without  payment  of  a  tax,  and  con- 
tained stringent  provisions  as  to  the  persons  by  whom  and 
the  places  in  which  liquor  might  be  sold.  It  contained  a 
provision,  which  the  governor  described  as  '*new  in  our 
legislation,  authorizing  an  injunction  to  restrain  the  sale  of 
liquor  without  a  certificate,  and  making  the  violation  of 
an  order  of  the  court  a  contempt." 

A  special  committee  on  taxation  composed  of  members 
from  both  the  senate  and  the  assembly  was  appointed  by 
the  legislature  in  1899.  This  committee  by  its  report 
(January  15,  1900)  advocated  the  imposition  of  a  five  mill 
tax  upon  mortgages,  and  a  tax  of  one  per  cent,  on  the 
stock  of  national  banks.  State  banks  and  trust  companies. 
Appended  to  its  report  was  a  bill  designed  to  carry  its  rec- 
ommendations into  effect.  In  1905  the  legislature  enacted 
a  mortgage  tax  law  laying  an  annual  tax  upon  mortgages. 
In  1906  the  law  was  so  amended  as  to  render  mortgages 


312  CONSTITUTIONAL   HISTORY 

free  from  taxation  after  a  single  payment  of  a  five  mill  tax 
called  a  recording  tax.  In  several  of  his  messages  Gover- 
nor Odell  had  urged  the  exemption  of  all  mortgages  from 
taxation.  As  a  concomitant  of  the  new  tax,  mortgages 
were  exempted  from  all  local  taxes.  The  gross  tax  col- 
lected from  this  source  during  the  year  ended  June  30,  191 3, 
was  $3,728,544.16. 

In  the  year  1905  a  stock  transfer  tax  law  was  adopted 
(Chapter  241^  Laws  of  1905)  which  was  amended  (Chap- 
ter 414,  Laws  of  1906;  Chapter  324,  Laws  of  1907).  The 
State  tax  upon  transfers  of  corporate  stock  has  been  held 
to  be  a  tax  not  upon  property,  but  its  transfer,  and  there- 
fore constitutional.  An  amendment  made  in  1906  imposing 
a  tax  of  two  cents  on  each  share  of  one  hundred  dollars  of 
face  value  or  fraction  thereof,  was  declared  an  unconstitu- 
tional discrimination  in  favor  of  the  owner  of  a  share  with 
a  face  value  of  one  hundred  dollars  as  against  the  owner  of 
a  share  with  a  smaller  face  value.  A  provision  of  the  law 
subjecting  private  books  to  examination  was  held  to  violate 
both  the  State  and  Federal  constitutions. 

By  Chapter  802,  Laws  of  191 1,  the  legislature  enacted 
a  tax  on  secured  debts,  which  in  effect  is  an  extension  of 
the  recording  tax  to  all  bonds  and  mortgages.  "Secured 
debts"  include  all  mortgages,  bonds,  debentures  and  notes 
forming  part  of  a  series  that  do  not  come  under  the  mort- 
gage-recording law.  The  tax  is  one-half  of  one  per  cent, 
on  the  face  value  of  such  securities.  If  paid  once,  it  exempts 
the  secured  debt  from  ordinary  local  assessment  as  personal 
property.  If  the  State  tax  is  not  paid,  the  owner  is  liable 
to  local  assessment,  and  cannot  deduct  or  offset  his  indebted- 
ness as  heretofore. 

The  State  has  never  exacted  any  income  tax,  unless  the 
State  tax  upon  corporations  may  be  said  to  involve  an  in- 
come tax.  Income  taxes,  however,  have  for  years  been 
employed  in  Massachusetts,  Virginia,  North  Carolina  and 
Louisiana.    The  experience  of  the  States  which  employ  this 


STATE   OF   NEW   YORK  313 

method  of  taxation  has  not  been  satisfactory.  Professor 
Seligman  considers  that  an  income  tax  is  more  and  more 
unsuccessful  as  the  basis  of  the  tax  becomes  narrower.  In 
modem  times  the  income  of  the  taxpayer,  and  especially  of 
the  larger  taxpayer,  has  little  to  do  with  the  locality  in 
which  he  happens  to  live.  "Incomes  nowadays,  through 
the  working  out  of  economic  forces,  have  become  national 
and  international  in  character,  and  at  all  events  have  far 
transcended  State  lines."  It  is  therefore  hardly  possible  for 
any  local  or  State  administration  successfully  to  ascertain 
or  adequately  to  control  the  income  of  its  resident  citizens. 
"The  State  income  taxes  in  the  United  States  are  largely 
for  that  reason  the  veriest  farces,  and  under  present  eco- 
nomic conditions  can  never  become  anything  else.  If  we 
are  to  have  an  income  tax  of  any  kind  that  is  at  all  in  con- 
sonance with  fiscal  principle,  it  must  obviously  be  a  Federal 
income  tax  rather  than  a  State  income  tax."  ^^ 

The  recent  special  franchise  tax  has  added  a  new  source 
of  revenue.  In  1891  the  Court  of  Appeals  promulgated  a 
decision  that  revolutionized  for  a  time  the  practice  of  assess- 
ing the  personal  property  of  corporations.  In  People  ex  rel. 
Union  Trust  Company  v.  Coleman  (126  N.  Y.,  433),  the 
court,  through  Judge  Finch,  decided  that  the  capital  stock 
of  a  company  for  purposes  of  taxation  meant,  not  the  share 
stock,  which  had  previously  been  the  basis  of  taxation,  but 
the  capital  owned  by  the  corporation;  that  is,  the  fund  re- 
quired to  be  paid  in  and  kept  intact  as  the  basis  of  its  busi- 
ness. "The  capital  stock  of  a  company  is  one  thing;  that 
of  the  shareholders  is  another  and  a  different  thing.  That 
of  the  company  is  simply  its  capital,  existing  in  money  or 
property  or  both;  while  that  of  the  shareholders  is  repre- 
sentative, not  merely  of  that  existing  and  tangible  capital, 
but  also  of  surplus,  of  dividend  earning  power,  of  franchise 
and  good  will."    The  one  was  declared  to  be  the  property 

""The  Relations  of  State  and  Federal  Finance,"  North  Ameri- 
can Review,  November,  1909,  621.     See  also  Essays  on  Taxation,  345. 


3 14  CONSTITUTIONAL  HISTORY 

of  the  company,  the  other  of  its  stockholders.  Ascertain- 
ment of  actual  capital  required  deduction  of  debts ;  further- 
more, the  intangible  franchises  of  a  corporation  rarely 
were  valued  upon  its  books;  but  into  the  market  value  of 
share  stock  debts  only  remotely  entered,  while  its  franchises, 
especially  if  the  corporation  were  exercising  public  fran- 
chises, were  prominent  factors  in  determining  that  value. 

After  an  experience  of  eight  years  of  assessments  of 
corporations  upon  the  theory  of  this  decision,  public  opin- 
ion began  to  appreciate  the  extent  to  which  corporations 
enjoying  profitable  public  franchises  were  escaping  taxa- 
tion. To  fasten  upon  the  public  franchise  a  tax  not  sus- 
ceptible of  evasion  became  the  important  thing,  and  the 
ingenious  device  was  adopted  of  treating  the  franchise  as 
real  estate,  for  debts  in  New  York  are  not  deductible  from 
the  assessed  value  of  real  estate,  although  they  are  de- 
ductible in  fixing  the  assessable  value  of  personal  property. 
On  March  27,  1899,  in  a  special  message  to  the  legislature 
Governor  Roosevelt  urged  a  change  in  the  law  to  bring  such 
franchises  under  taxation.  He  had,  he  said,  no  sympathy 
with  the  outcry  against  corporations  as  such;  nevertheless, 
they  enjoyed  too  frequently  a  large  share  of  immunity  from 
taxation.  This  was  especially  true  as  to  franchises  be- 
stowed upon  gas  companies,  street  railroads,  and  the  like. 
Whether  these  franchises  should  be  taxed  as  realty  or 
should  pay  upon  their  gross  earnings,  was  a  question;  but 
in  some  form  they  should  yield  a  money  return  to  the 
government.  A  bill  was  introduced  in  the  senate  by  Sena- 
tor John  Ford  (now  Mr.  Justice  Ford)  enlarging  the  defini- 
tion of  real  estate  to  include  these  franchises,  and  was 
passed  in  the  senate  by  an  overwhelming  majority.  Its 
consideration  was  blocked  for  a  time  in  the  assembly,  but 
on  April  28,  1899,  a  vigorous  special  message  from  the 
Governor  led  to  its  prompt  passage.  After  important 
amendments  suggested  by  the  Governor,  which  transferred 
to  the  State  Board  of  Tax  Commissioners  the  power  of 


STATE   OF  NEW  YORK  315 

assessment,  it  was  enacted  at  a  special  session  of  the  legisla- 
ture called  for  the  purpose,  and  became  a  law  on  May 
26,  1899.1^ 

The  court  of  appeals,  and  ultimately  the  highest  court 
in  the  nation,  has  sustained  its  constitutionality.  With  the 
increasing  number  of  these  public  utilities,  especially  in 
crowded  municipalities,  and  their  use  of  the  street,  of  the 
sub-surface,  and,  perhaps,  even  of  the  air,  enormous  revenue 
may  come  from  them  in  the  future,  to  the  relief  of  the 
ordinary  taxpayer.  The  vitally  sound  principle  underlying 
this  sort  of  taxation,  like  that  underlying  the  newer  forms 
of  taxation  for  State  purposes,  is  that  special  privilege 
should  pay  for  the  advantages  accorded.  The  incidence  of 
taxation  may  cast  the  ultimate  burden  upon  the  community, 
but  with  growing  regulation  this  is  tolerable. 

As  was  said  by  Governor  Higgins  in  1906: 

"The  State's  revenues  are  now  derived  entirely  from  the  liquor  tax, 
corporation  and  inheritance  taxes,  taxes  on  transfers  of  stock,  and  the 
like.  The  primitive  form  of  land  tax  has  been  broken  up  and  personal 
property,  escaping  as  it  does  practically  all  direct  taxation,  is  reached 
by  indirect  methods  which  work  little  hardship." 

It  was  a  wise  saying  of  the  historian  Hallam  that  "the 
sting  of  taxation  is  wastefulness,  but  it  is  difficult  to  name 
a  limit  beyond  which  taxes  will  not  be  borne  without  impa- 
tience when  faithfully  applied."  A  fifth  canon  might  be 
added  to  Adam  Smith's  celebrated  four  canons  upon  the 
subject  of  taxation — that  moneys  exacted  from  the  com- 
munity for  public  purposes  should  be  devoted  strictly  and 
sacredly  to  the  ends  for  which  they  have  been  obtained, 
with  utmost  regard  to  economy.  Expenditures  for  State 
government,  originally  simple  and  small  in  amount,  cover 


""Under  this  ingenious  definition  of  a  special  franchise,"  says 
Professor  Seligman,  "all  public  service  corporations  in  New  York 
have  now  been  compelled  to  bear  a  far  greater  share  of  taxation  than 
was  previously  the  case." 


3i6  CONSTITUTIONAL   HISTORY 

to-day  a  wide  realm — schools,  charities,  hospitals,  prisons, 
canals,  good  roads,  etc. 

In  a  report  made  by  Mr.  Wolcott,  Secretary  of  the 
Treasury,  in  1796  to  Congress,  upon  the  subject  of  taxation 
in  the  various  States,  it  was  asserted  that  no  direct  tax 
had  been  levied  in  New  York  since  1788,  and  that  no  objects 
of  taxation  were  defined  by  the  laws,  nor  any  principles 
of  valuation  prescribed.  The  credit  and  funds  of  the  State 
were  ample,  and  their  products  sufficient  to  supersede  the 
necessity  of  taxation  except  for  county  and  local  purposes. 
The  State  tax  of  1788  was  only  $60,000.  Hamilton  argued 
in  The  Federalist  that  all  necessary  expenses  of  State  gov- 
ernments could  not  for  many  years  exceed  a  million  dollars 
annually  for  all  purposes.  Until  the  State  embarked  upon 
canal  building,  its  expenditures  were  moderate  indeed — so 
moderate  that  direct  taxation,  to  which  resort  was  had  about 
1800,  was  discontinued  a  few  years  later.  It  was  reimposed 
in  1814,  when  a  tax  of  two  mills  on  each  dollar  of  valuation 
of  real  and  personal  property  throughout  the  State  was 
levied.  This  tax  was  continued  until  18 18;  then  reduced 
to  one  mill;  in  1824  it  fell  to  half  a  mill,  and  in  1827  wholly 
ceased.  Several  governors,  notably  Governor  Marcy,  im- 
pressed with  the  diminution  of  the  general  fund,  urged 
recurrence  to  direct  taxation,  but  direct  taxes  were  not 
resumed  tmtil  1842,  when  the  celebrated  "pay  as  you  go'* 
act  was  passed.  Direct  taxation  was  again  discontinued  in 
1907,  but  has  since  been  resumed.  The  enormous  State 
debt  that  has  grown  out  of  canal  enlargement  and  highway 
improvement  has  necessitated  a  return  to  the  direct  tax, 
for  the  interest  on  the  State  debt  and  the  requisite  sinking 
fund  charges  cannot  be  supplied  from  the  present  indirect 
sources  of  revenue. 

No  constitutional  limitation  upon  debt  creation  existed 
until  1846.  Once  thereafter  the  State  debt  exceeded  the 
constitutional  limit.  In  1859  the  auditor  of  the  canal  de- 
partment reported  that  drafts  had  been  made  upon  the 


STATE   OF   NEW   YORK  317 

canal  commissioners  for  sums  far  beyond  the  ability  of 
the  treasury.  This  debt,  estimated  at  upwards  of  $2,000,- 
000,  had  grown  out  of  claims  against  the  State  for  work 
upon  the  canals,  and  for  private  property  appropriated  for 
their  use  or  needed  in  canal  construction.  As  Governor 
Morgan  said  in  his  annual  message  of  that  year,  a  debt  had 
been  created  "without  the  means  of  payment  in  the  treasury 
or  at  the  command  of  those  who  made  it,"  and  he  urged 
the  legislature  to  take  prompt  measures  "to  save  unimpaired 
the  public  faith,"  for  under  no  circumstances,  added  the 
governor,  "will  the  State  of  New  York  ever  refuse  to 
acknowledge  and  pay  any  and  all  just  claims  that  exist 
against  it,  or  that  may  have  been  contracted  by  any  of  her 
authorized  agents."  Chapter  271  of  the  Laws  of  1859  au- 
thorized, subject  to  popular  approval,  a  loan  to  the  State 
of  two  and  a  half  million  dollars  to  defray  these  claims,  and 
the  imposition  of  a  direct  tax  upon  real  and  personal  prop- 
erty to  be  collected  proportionately  in  the  several  counties 
to  meet  the  loan  and  interest  upon  it.  The  bond  issue  was 
accordingly  authorized  by  the  people  at  the  election  of  1859. 
A  large  debt  grew  out  of  the  bounties  offered  for  the 
enlistment  of  soldiers  in  the  Civil  War.  Governor  Mor- 
gan, in  the  special  message  of  April  15,  1861,  evoked  by 
President  Lincoln's  proclamation  calling  for  a  force  of 
75,000  men,  of  which  the  quota  assigned  to  New  York  was 
13,000,  offered  a  State  bounty  of  fifty  dollars  to  each  volun- 
teer, and  large  sums  besides  were  voted  in  various  localities 
of  the  State  as  additional  premiums  to  soldiers  enlisting 
in  the  service.  The  burden  upon  the  towns  and  municipali- 
ties was  so  heavy  that  it  was  eventually  felt  that  the  State 
should  assume  it.  Governor  Seymour  recommended  the 
passage  of  suitable  legislation  for  this  purpose,  and  accord- 
ingly a  reimbursing  act  was  passed  in  1866  imposing  a  tax 
of  two  per  cent,  on  taxable  real  and  personal  property  in 
the  State,  to  raise  money  to  pay  these  bounties,  in  case  the 
people   by   popular   vote   should   approve  the  procedure. 


3i8  CONSTITUTIONAL   HISTORY 

The  act  authorized  an  issue  of  not  exceeding  thirty  million 
dollars  payable  in  twelve  years.  By  a  vote  at  the  fall  elec- 
tion of  1866  the  people  approved  the  bond  issue,  the  vote 
being  393,113  in  favor  to  218,665  against,  and  bonds  to 
pay  bounties  were  issued  to  the  extent  of  $27,644,000.  This 
debt  was  extinguished  at  its  maturity,  although  the  conven- 
tion of  1867  had  proposed  its  extension  to  1886.  Governor 
Robinson  in  his  message  in  1878  congratulated  the  legisla- 
ture upon  the  payment  of  the  debt,  which  had  fallen  due 
on  April  7,  1877.  The  debt,  he  said,  had  been  a  heavy 
burden  upon  the  taxpayers  of  the  State,  the  whole  amount 
paid  by  them  during  the  twelve  years  which  it  had  run  be- 
ing $43,270,337.47.  The  extent  to  which  the  moneys  sup- 
plied by  the  generosity  of  the  commonwealth  reached  the 
soldiers,  remains  matter  of  uncertainty ;  as  Governor  Tilden 
said  in  his  message  of  1876,  the  bounty  debt  was  an  ''after 
war  adjustment."  It  was  created,  as  the  comptroller  had 
said  in  his  report  of  1875,  "nominally  to  pay  bounties  to 
the  volunteer  soldiers  who  enlisted  in  the  service  of  the 
United  States  during  the  Rebellion,  but  only  an  inconsid- 
erable part  of  this  sum  is  believed  to  have  reached  the 
soldiers  who  were  actually  engaged  in  the  contest." 

Early  in  the  Civil  War,  Congress  imposed  a  direct  tax 
for  war  purposes  of  $20,000,000,  to  be  apportioned  among 
the  States,  and  the  act  fixed  the  share  of  each,  that  of  New 
York  being  $2,603,916.67.  The  law  enacted  that  any  State 
might  assess  or  collect  the  tax  in  its  own  way,  through 
its  own  officers,  provided  it  paid  the  same  into  the  national 
treasury.  Governor  Morgan  recommended  that  the  State 
assume  its  quota  at  once,  and  the  legislature  accordingly  by 
concurrent  legislation  authorized  the  governor  to  notify  the 
secretary  of  the  treasury  that  its  share  of  the  tax  would 
be  paid  on  or  before  June  i,  1862.^^ 

After  the  declaration  of  war  against  Spain,  the  legis- 


See  also  Chapter  192,  Laws  of  1862. 


STATE   OF   NEW   YORK  319 

lature,  upon  the  suggestion  of  Governor  Black,  in  extra 
session  appropriated  $1,000,000  to  defray  the  expenses  of 
the  National  Guard  and  Naval  Militia  of  the  State,  and 
volunteers  furnished  by  it  when  called  into  service  for 
the  public  defence  on  the  requisition  of  the  president.  Pay- 
ments were  to  be  made  only  upon  the  certificate  of  the  gov- 
ernor. The  act  imposed  a  tax  for  the  purpose  of  raising 
the  amount  appropriated. 

By  vote  of  the  people,  as  was  told  in  the  preceding  chap- 
ter, the  power  to  incur  a  canal  debt  of  $9,000,000,  and 
afterwards  of  $101,000,000,  was  approved  at  the  polls.  In 
1909  the  provision  forbidding  the  submission  of  any  pro- 
posal to  incur  or  increase  a  debt  at  any  general  election 
when  any  other  law  or  any  bill  or  any  amendment  to  the 
constitution  was  to  be  submitted  was  eliminated,  the  con- 
stitution now  reading  upon  this  point  as  follows :  "No  such 
law  shall  be  submitted  to  be  voted  on  within  three  months 
after  its  passage,  or  at  any  general  election  when  any  other 
law  or  any  bill  shall  be  submitted  to  be  voted  for  or  against." 
In  1909  there  was  also  added  the  following  amendment: 
"The  legislature  may  provide  for  the  issue  of  bonds  of  the 
State  to  run  for  a  period  not  exceeding  fifty  years,  in  lieu 
of  bonds  heretofore  authorized  but  not  issued,  and  shall 
impose  and  provide  for  the  collection  of  a  direct  annual 
tax  for  the  payment  of  the  same  as  hereinbefore  required. 
When  any  sinking  fund  created  under  this  section  shall 
equal  in  amount  the  debt  for  which  it  was  created,  no  fur- 
ther direct  tax  shall  be  levied  on  account  of  said  sinking 
fund  and  the  legislature  shall  reduce  the  tax  to  an  amount 
equal  to  the  accruing  interest  on  such  debt."  This  last 
provision  should  save  the  State  from  repeating  the  unfortu- 
nate experience  of  New  York  City  in  regard  to  sinking 
funds.  The  growth  of  the  surplus  revenues  of  the  sinking 
funds  of  the  city  had  become  so  enormous  by  1903  as  to 
justify  a  law,  almost  trenching  upon  the  contract  rights  of 
the  city's  bondholders,  diverting  into  the  city's  general  fund 


320  CONSTITUTIONAL   HISTORY 

a  large  annual  sum.  Under  the  State  constitution,  whenever 
the  sinking  fund  shall  have  become  equal  to  the  debt,  in- 
crease in  the  fund  automatically  stops  by  the  cessation  of  the 
direct  tax  which  is  its  source  of  supply.  By  an  amendment 
approved  by  the  legislatures  of  1903  and  1905  the  imposition 
of  a  direct  tax  for  the  payment  of  the  principal  and  interest 
of  certain  State  debts  ceased  to  be  mandatory,  and  it  was 
made  optional  with  the  legislature  to  provide  for  the  dis- 
charge of  the  bonded  debt  either  by  direct  taxation  or  from 
indirect  sources  of  revenue. ^^  The  vote  in  1905  in  favor 
of  this  amendment  was  293,552,  against  127,364;  majority 
166,108. 

In  1905  there  was  also  added  to  the  seventh  article  of 
the  constitution  a  section  authorizing  a  debt  for  the  im- 
provement of  highways.  Rome  had  been  celebrated  for 
her  great  state  roads,  which  during  the  latter  days  of  the 
republic  and  the  early  years  of  the  empire  had  been  extended 
all  over  Europe  and  into  Asia  Minor ;  and  these  avenues  of 
commerce  and  communication  were  important  agencies  in 
the  rapid  diffusion  of  Christianity.  The  use  of  the  bicycle 
and  later  of  the  automobile  focused  public  attention  upon 
the  archaic  state  of  the  highways  of  New  York,  with  the 
result  that  an  amendment  was  formulated,  passed  by  two 
legislatures  and  adopted  by  the  people,  the  vote  in  its 
favor  being  307,768,  against  it  134,773;  majority  172,995. 
(sec.  12,  Art.  VII.)  The  aggregate  of  the  highway  debt 
may  not  at  any  time  exceed  fifty  millions  of  dollars.  An- 
nual interest  and  amortization  instalments  are  to  be  pro- 
vided for  by  general  laws,  and  the  legislature  may  by  such 
laws  require  a  county  or  town  or  both  to  pay  to  the  sinking 
fund  the  proportionate  part  of  the  cost  of  any  such  high- 
way within  the  boundaries  of  the  county  or  town,  and 
its  proportionate  part  of  the  interest,  but  no  county  shall 
at  any  time,  for  any  highway,  be  required  to  pay  more  than 

"Comptroller's  Report,  1906,  XXX.  The  direct  tax  has,  how- 
ever, since  been  resumed. 


STATE   OF   NEW   YORK  321 

35-100  of  the  cost,  and  no  town  more  than  15-100.  No 
provision  of  the  fourth  section  of  article  VII  is  to  apply- 
to  debts  for  the  improvement  of  highways.  Scandals  have 
unfortunately  arisen  in  the  construction  of  the  work  which, 
far  from  proving  as  durable  as  was  expected,  has  required 
much  replacement  and  repair.  The  issue  of  long  term 
bonds  for  roads  lacking  qualities  of  permanence  would  ap- 
pear to  be  a  fiscal  error  of  serious  import. 

The  trebling  of  annual  expenditures  inside  of  twenty 
years  from  a  little  more  than  fifteen  millions  in  1899,  to 
fifty  millions  at  the  present  time,  proves  the  need  of  a 
proper  yearly  budget.  And  it  is  indeed  time  to  consider 
whether  the  numerous  State  commissions  which  have  been 
created  within  the  last  few  years  are  necessary  or  are  so 
wisely  and  economically  administered  as  to  take  the  sting 
from  taxation. 


Z22  CONSTITUTIONAL   HISTORY 


CHAPTER   XVII 

CONTRASTS  BETWEEN  THE  EARLIER  COURTS  OF  THE  STATE 
AND  PRESENT  TRIBUNALS THE  CONSTITUTIONAL  COM- 
MISSION   OF    1890 TREATMENT    OF   THE    JUDICIARY    BY 

THE   CONVENTION   OF    1 894 THE   COURT   OF  APPEALS — • 

THE  APPELLATE  DIVISIONS ABOLITION  OF  THE  SUPERIOR 

COURTS — surrogates'    COURTS JUDICIARY   PENSIONS 

RECENT  CONSTITUTIONAL  AMENDMENTS  AFFECTING  THE 

JUDICIARY THE  WORK  OF  THE  COURTS THEIR  POWER 

TO    DECLARE    LEGISLATION    VOID COURTS    AND    PUBLIC 

OPINION INDEPENDENCE     OF     COURTS     VITAL FUTILE 

AND  UNWISE  ATTEMPTS  IN  CONGRESS  TO  BRING  FEDERAL 
JUDICIARY  UNDER  POPULAR  CONTROL. 

When  the  courts  of  the  early  State  are  contrasted  with 
present  ones,  very  marked  differences  are  brought  sharply 
to  notice.  The  highest  appellate  court  in  the  latter  part 
of  the  eighteenth  and  first  part  of  the  nineteenth  century 
was  a  very  large  tribunal.  All  of  the  senators  participated 
in  the  decisions,  although  comparatively  few  wrote  opin- 
ions. In  this  respect  the  court  was  unlike  the  House  of 
Lords,  the  final  court  of  appeal  in  Great  Britain.  There 
the  law  lords  alone  really  constitute  the  court.  The  early 
Supreme  Court,  on  the  other  hand,  consisted  of  but  three 
members,  who  guarded  their  prerogatives  so  jealously  that 
they  were  unwilling  to  share  them  with  a  larger  number. 
Under  the  second  constitution  the  court  of  errors  and  ap- 
peals continued  unchanged  save  as  to  actual  numbers, 
the  Supreme  Court  became  a  court  exclusively  of  appellate 
jurisdiction  and  the  circuit  judges  sat  at  nisi  prius  and  ix\ 


STATE   OF   NEW    YORK  323 

oyer  and  terminer.  Under  the  first  constitution,  equity  was 
administered  by  the  chancellor,  under  the  second,  not  only 
by  the  chancellor  but  also  by  the  circuit  judges  and  the 
county  courts,  subject  to  the  appellate  jurisdiction  of  the 
chancellor.  A  halfway  step  was  thus  taken  towards  the 
union  of  law  and  equity  courts  that  was  completed  in  1847. 

It  is  an  interesting  fact,  illustrative  of  the  instability  of 
the  first  court  of  appeals,  that  in  its  existence  of  twenty- 
three  years  there  sat  in  it  one  hundred  and  twenty  different 
judges,  while  in  the  period  between  July,  1870,  and  the  pres- 
ent time  the  number  of  judges  in  the  newly  organized  court 
of  appeals  has  been  fewer  than  forty,  and  since  the  forma- 
tion of  the  federal  constitution  only  sixty- four  justices  have 
been  members  of  the  highest  judicial  tribunal  of  the  na- 
tion. 

The  growth  of  population  has  necessitated  great  increase 
in  the  number  of  justices  of  the  Supreme  Court.  The 
judges  of  the  original  court  who  were  so  tenacious  of  their 
authority  that  they  would  never  permit  the  tribunal  to  be 
enlarged  could  not  have  foreseen  the  enormous  augmenta- 
tion in  the  number  of  Supreme  Court  justices  to  follow  in 
a  hundred  years.  They  would  perhaps  have  considered 
so  large  a  court  incompatible  with  the  dignity  of  the  office. 
It  would  not  have  been  a  court  of  which  they  would  ever 
have  aspired  to  be  members.  Enlargement  may  have  a 
tendency  to  cheapen  the  place;  nevertheless  judicial  business 
seems  to  require  a  great  number  of  judges.  The  federal 
tribunals  contain  in  all  one  hundred  and  sixteen  judges. 
No  other  State  has  anything  like  the  relative  number  that 
New  York  has. 

With  numerous  changes  every  year  in  the  personnel 
of  the  highest  court  of  the  State  between  1847  ^^^  1870, 
the  marvel  is  that  there  was  not  more  uncertainty  in  the 
law.  The  strongly  conservative  habit  of  judges  kept  them 
faithful  to  legal  precedents.  In  1846  the  size  of  the  highest 
tribunal  had  been  reduced  to  eight,  although  its  membership 


324  CONSTITUTIONAL   HISTORY 

unfortunately  kept  constantly  changing.  In  1870  a  small 
court  was  continued,  but  it  was  rendered  more  compact, 
and  all  its  members  were  elected  at  large  throughout  the 
State,  thus  ensuring  a  stable  tribunal  and  the  nomination 
to  it,  as  a  rule,  of  lawyers  of  recognized  eminence.  Al- 
though an  enlargement  of  the  court  of  appeals  has  several 
times  been  suggested,  sentiment  in  favor  of  it  has  never 
been  sufficiently  influential  to  effect  a  change,  and  the  mem- 
bers of  the  court  itself  have  almost  uniformly  been  hostile 
to  it.  Probably  the  convention  that  is  to  meet  in  April 
will  leave  the  size  of  the  court  substantially  as  it  is. 

The  inability  of  the  old  court  to  keep  pace  with  its 
business  and  promptly  dispose  of  the  causes  before  it  led 
the  judiciary  committee  in  the  convention  of  1867  to  suggest 
the  organization  of  a  temporary  commission  of  appeals,  and 
when  the  work  of  the  court  again  fell  into  arrears,  as  it 
did  about  1887,  a  second  division  of  the  court  of  appeals 
was  organized,  the  constitution  having  been  amended  to 
permit  of  its  creation.^  But  two  co-ordinate  courts  of  ap- 
peal could  not  well  co-exist  without  divergence  of  opinion 
and  the  introduction  of  a  degree  of  uncertainty  into  the 
law.  The  tendency  of  the  court  when  not  under  efficient 
management  being  to  fall  behind  with  its  calendars,  it  was 
felt  soon  after  the  second  division  had  disbanded  that  either 
the  court  of  appeals  must  be  increased  or  its  jurisdiction 

*In  1887  a  proposed  constitutional  amendment  was  passed  by  the 
legislature  authorizing  the  governor,  upon  certification  by  the  court  of 
appeals  that  its  calendar  had  proven  too  heavy  for  prompt  disposition, 
to  designate  seven  justices  from  the  Supreme  Court  to  act  as  a  second 
division  of  the  court  of  appeals  and  hear  and  decide  the  causes  as- 
signed to  it  by  the  original  court.  The  proposed  amendment  having 
passed  the  legislature  of  1889  also  was  submitted  to  and  ratified  by  the 
people  at  the  fall  election  of  that  year.  The  second  division  com- 
menced its  hearings  on  March  5,  1891,  and  closed  its  work  on  October 
I,  1892.  All  such  schemes  as  commissions  of  appeals  and  second  divi- 
sions were  felt  to  be  mere  temporary  makeshifts.  The  aim  of  the  com- 
mission of  1890  and  afterwards  of  the  convention  of  1894  was  so  to 
reconstitute  the  court  of  appeals  as  to  render  it  efficient  in  the  despatch 
of  business,  while  maintaining  it  as  a  small  and  harmonious  tribunal. 


STATE   OF   NEW   YORK  325 

be  circumscribed  and  the  number  of  appeals  reduced.  To 
bring  about  this  last  result  and  to  create  an  intermediate 
appellate  tribunal  of  sufficient  distinction  and  character  to 
furnish  a  court  of  last  resort  was  the  chief  task  of  the 
commission  of  1890. 

Although  the  people  in  1886,  by  a  decisive  vote,  favored 
the  call  of  a  constitutional  convention,  no  law  for  the 
election  of  delegates  was  enacted  until  1892,  as  the  Repub- 
lican legislature  and  the  Democratic  governor  were  unable 
to  agree  upon  the  manner  of  their  choice.  But  it  having 
become  apparent  in  the  interval  that  the  judicial  system 
needed  correction,  the  legislature  on  April  26,  1890,  passed 
an  act  authorizing  the  appointment  by  the  governor,  with 
the  advice  and  consent  of  the  senate,  of  a  commission  to 
propose  amendments  to  the  judiciary  article  of  the  con- 
stitution.^ The  commission  was  to  consist  of  thirty-eight 
persons,  four  from  each  judicial  district  except  the  first 
district  which  was  to  have  eight,  and  the  second  district 
which  was  to  have  six  members.^  Not  more  than  one-half 
of  the  members  from  each  district  were  to  belong  to  the 
same  political  party.  The  persons  selected  by  the  governor 
were  lawyers  who  had  achieved  high  distinction  in  the 
profession.  The  commission  organized  at  Albany,  June  3, 
1890,  and  elected  ex- Judge  George  F.  Danforth  chairman. 
Its  report  was  submitted  to  the  senate  on  March  4,  1891. 

Briefly  stated,  the  report  of  the  commission  favored  a 
single  court  of  appeals  unchanged  in  number,  general  terms 
of  enlarged  jurisdiction,  the  abolition  of  the  Superior 
Court  of  the  City  of  New  York  on  December  31,  1894,  and 
the  continuance  of  the  Court  of  Common  Pleas  for  the 
City  and  County  of  New  York,  the  City  Court  of  Brook- 
lyn and  the  Superior  Court  of  Buffalo,  but  without  appel- 


'  Chapter  189,  Laws  of  1890, 

'  At  that  time  there  were  eight  judicial  districts  in  the  State.  The 
ninth  judicial  district  was  created  by  a  constitutional  amendment  that 
took  effect  January  i,  1906. 


326  CONSTITUTIONAL   HISTOR-Y 

late  jurisdiction.  It  proposed  that  the  State  be  divided 
into  four  judicial  departments,  with  one  general  term  of 
five  justices  in  each  department;  that  the  governor  should 
designate  the  justices  to  sit  at  general  term;  and  that  gen- 
eral term  justices  should  exercise  none  of  the  powers  of 
justices  of  the  Supreme  Court  other  than  those  pertaining 
to  the  general  terms  of  which  they  were  respectively  to  be 
members.  At  first  it  outlined  a  theory  for  the  election  of 
twenty  general  term  justices  by  the  State  at  large,  the  pur- 
pose being  to  secure  for  this  appellate  court  men  noted 
for  their  legal  attainments  throughout  the  entire  State. 
But  as  neither  the  bar  nor  the  public  approved  the  election 
of  these  justices  upon  a  general  ticket,  this  proposal — sup- 
ported by  Mr.  Choate,  Mr.  Carter,  Mr.  Hornblower  and 
others — was  abandoned,  and  the  commissioners  finally  de- 
cided to  substitute  district  election  for  State-wide  election 
in  the  choice  of  the  general  term  justices.  The  district 
system  was  less  likely  than  the  general  ticket  system  to  se- 
cure commanding  talent,  for  a  lawyer  of  mediocre  ability 
may  achieve  popularity  in  a  district.  The  judicial  depart- 
ments were  to  be  made  alterable  every  ten  years  by  the 
legislature.  An  attempt  to  reduce  the  term  of  Supreme 
Court  justices  to  eight  years  was  wisely  voted  down — 2^ 
to  10. 

The  commission  was  of  the  opinion  that  no  litigant  is 
ordinarily  entitled  at  the  expense  of  the  State  to  more  than 
one  appeal.  Under  the  then  existing  system  the  limita- 
tion upon  appeals  was  a  pecuniary  one — no  case  was  ap- 
pealable to  the  court  of  appeals  unless  it  involved  at  least 
five  hundred  dollars.  The  commission  proposed  with  cer- 
tain exceptions  to  forbid  appeals  to  the  court  of  appeals 
from  unanimous  affirmances  at  general  term.  The  chief 
exception  was  where  the  controversy  concerned  the  con- 
struction or  effect  of  a  provision  of  the  constitution  or  a 
statute  of  this  State  or  of  the  United  States.  The  theory 
underlying  its  proposed  limitations  of  appeals  as  stated  by 


STATE   OF   NEW   YORK  327 

one  of  its  members,*  was  that  an  appellate  court  pos- 
sessed two  functions:  (i)  to  apply  the  law  as  previously 
laid  down  by  the  courts  and  the  legislature  to  the  case  at 
bar  and  to  correct  any  substantial  errors  committed  by  the 
courts  below;  (2)  to  decide  new  questions  of  law  and  to 
lay  down  rules  for  the  guidance  of  the  courts  in  future 
cases.  The  first  of  these  functions  primarily  concerns  the 
individual ;  the  second  affects  the  community  at  large.  The 
great  proportion  of  litigations  should,  upon  this  theory, 
never  be  carried  beyond  the  first  appellate  court — the  gen- 
eral term.  Its  decision  in  applying  the  law  to  the  facts 
should  be  conclusive  unless  some  doubt  should  arise  as  to 
the  underlying  principle  of  law  or  unless  such  important 
questions  were  involved  as  to  render  it  desirable  in  the 
interests  of  the  State  at  large  that  the  court  of  appeals 
should  consider  the  case.  The  commission  was  justly  op- 
posed to  two  co-ordinate  courts  of  appeal  and  opposed  also 
to  a  court  of  fifteen  judges — a  project  widely  urged. 

The  recommendations  of  the  commission  were  not 
approved  by  the  legislature  of  1891.  That  body  differed 
seriously  with  the  commission  regarding  the  proper  size 
of  the  court  of  appeals.  It  adopted  a  resolution  for  an 
amendment  to  the  constitution  creating  a  court  consisting 
of  a  chief  judge  and  fourteen  associate  judges,  the  chief 
judge  and  associate  judges  then  in  office  to  compose  part 
of  the  court  until  the  expiration  of  their  respective  terms — 
no  elector  to  vote  for  more  than  one-half  of  the  number 
of  judges  at  any  election  at  which  an  even  number  was  to 
be  chosen.  If  an  uneven  number  were  to  be  chosen,  no 
elector  was  to  vote  for  more  than  the  smallest  number 
suflficient  to  constitute  a  majority  of  the  number  to  be 
chosen.  The  principles  underlying  the  work  of  the  com- 
mission were  unimpeachable  and  its  report  possesses  en- 
during value.     As  in  the  case  of  the  convention  of  1867, 


W.  B.  Hornblower,  s  Columbia  Law  Times  (No.  6),  March,  1892, 


328  CONSTITUTIONAL   HISTORY 

the  labor  of  the  commission  was  not  futile,  although  its 
report  never  received  legislative  approval.  The  substance 
of  it  in  theory  if  not  in  form  was  incorporated  in  the 
judiciary  article  drafted  by  the  convention  of  1894  and  was 
accepted  by  the  people  with  the  other  provisions  of  the  new 
constitution. 

The  controversy  between  the  legislature  and  the  gov- 
ernor respecting  the  mode  of  electing  delegates  to  a  con- 
stitutional convention,  which  had  continued  for  several 
years  after  the  popular  vote  for  a  convention  in  1886,  came 
to  an  end  in  1892,  when  both  the  legislature  and  the  gov- 
ernor were  Democratic.  One  of  the  most  important  sub- 
jects considered  by  the  convention  which  assembled  in  the 
spring  of  1894  was  the  proper  manner  of  amending  the 
judiciary  article.  The  need  of  improvement  in  the  judi- 
cial system  had  become  increasingly  evident  since  the  failure 
of  the  legislature  to  permit  the  work  of  the  commission  of 
1890  to  be  submitted  for  popular  consideration. 

Upon  the  judiciary  committee  of  the  convention  of 
1894  were  seventeen  prominent  lawyers  from  various  parts 
of  the  State.  The  committee  agreed  with  the  commission 
of  1890  that  no  individual  suitor  was  entitled  to  more  than 
one  appeal  as  matter  of  right.    Its  report  wisely  said : 

"Every  State  is  bound  to  give  its  citizens  one  trial  of  their  con- 
troversies and  one  review  of  the  rulings  and  results  of  the  trial  by  a 
competent  and  impartial  appellate  tribunal.  When  this  has  been  done, 
the  duty  of  the  State  to  the  particular  litigants  involved  in  any  case  is 
fully  performed.  There  is  no  consideration  of  public  duty  or  of  the 
private  interests  involved  in  litigation,  which  requires  a  second  appeal 
and  a  second  review." 

Two  methods  of  relief  of  the  over-burdened  court  of 
appeals  were  proposed  in  the  committee.  The  first  involved 
either  an  increase  in  the  membership  of  the  court,  or  its 
division  into  two  co-ordinate  tribunals,  but  to  each  there 
were  obviously  grave  objections  and  neither  was  approved 
by  the  judges  themselves.     The  other  plan  of  relief  was 


STATE   OF   NEW   YORK  329 

to  restrict  the  classes  of  cases  to  be  appealed,  and  so  reduce 
the  volume  of  work  as  to  bring  it  within  the  control  of  a 
court  of  moderate  numbers  in  which  consistency  of  legal 
view  might  be  attainable.  The  judiciary  committee  decided 
to  continue  the  court  of  appeals  as  previously  constituted, 
but  with  limitations  upon  its  powers.  Upon  this  subject 
the  report  said: 

"The  court  of  appeals  is  to  be  enlarged  to  nine,  the  highest  num- 
ber with  which  the  unity  of  the  court  and  its  consistent  declaration 
and  development  of  the  law  can  in  our  opinion  be  maintained.  It  is  to 
be  strictly  limited  to  its  proper  province  of  reviewing  questions  of  law 
(except  in  capital  cases),  leaving  the  judgments  of  the  appellate  divi- 
sion final  upon  all  questions  of  fact." 

The  plan  of  the  committee  was  approved  by  the  con- 
vention. The  jurisdiction  of  the  court  was,  after  December 
31,  1895,  to  be  confined,  as  provided  in  a  new  section  (9) 
of  the  judiciary  article,  to  the  review  of  questions  of  law, 
except  in  capital  cases.  The  money  limitation  upon  appeals 
was  to  be  abandoned  and  a  section  briefly  enumerating  the 
subjects  of  which  the  court  of  last  resort  might  take  cog- 
nizance, was  adopted  by  the  convention  in  lieu  of  the  more 
cumbersome  phraseology  used  by  the  commission  of  1890. 
Thus,  it  was  believed,  would  happily  be  solved  the  prob- 
lem of  continuing  the  court  as  a  unit  of  workable  size  and 
at  the  same  time  insuring  ''consistent  declaration  and 
development  of  the  law." 

For  the  general  term  system,  with  nine  tribunals,^  co- 
ordinate or  nearly  so,  often  diverse  in  views  of  law,  the 
judiciary  committee  proposed  to  substitute  a  court  that 
should  be  the  ultimate  tribunal  in  the  great  majority  of 
cases.     In  the  creation  of  this  court  it  was  desirable  to 


'The  constitutional  amendment  of  1882  created  an  additional 
department.  Thus,  with  five  departments  of  the  supreme  court  exer- 
cising appellate  functions  and  with  general  terms  in  the  Court  of  Com- 
mon Pleas  in  New  York  County  and  in  the  three  superior  city  courts 
there  were  in  1894  nine  tribunals  of  practically  coordinate  jurisdiction. 


330  CONSTITUTIONAL   HISTORY 

cure,  so  far  as  practicable,  the  weakness  of  the  former 
system,  which  it  was  proposed  to  remedy  by  the  division 
of  the  State  into  four  departments,  and  the  formation  of 
four  co-ordinate  appellate  tribunals  of  such  size  and  strength 
as  to  satisfy  the  bar  and  the  public  that  each  of  them  would 
be  a  worthy  court  of  last  resort  for  the  great  bulk  of  suitors. 
*'Its  judgments,"  said  the  judiciary  committee,  "were  to  be 
made  final  in  a  much  wider  range  of  questions  through  limi- 
tations upon  the  jurisdiction  of  the  court  of  appeals" ;  it  was 
to  be  made  large  enough  "to  insure  full  discussion  and  the 
correction  of  individual  opinions  by  the  process  of  reaching 
a  consensus  of  opinion,"  and  for  the  attainment  of  these  ends 
its  members  were  to  be  relieved  from  all  circuit  and  spe- 
cial term  duties.  As  the  name  "general  term"  was  consid- 
ered meaningless,  the  title  suggested  for  the  new  court  was 
that  of  "appellate  division."  The  appellate  division  in  the 
first  department  was  to  consist  of  seven  justices,  no  more 
than  five  to  sit  in  any  case.  In  each  of  the  remaining  three 
departments  it  was  to  consist  of  five  justices.  In  each  de- 
partment four  justices  were  to  constitute  a  quorum  and  the 
concurrence  of  three  was  made  necessary  to  a  decision. 
No  justice  sitting  as  an  appellate  justice  was  to  sit  in 
any   other   capacity.^       The  method   of   selection   of  the 


"Of  the  foregoing  portion  of  the  convention's  treatment  of  the 
judiciary,  Mr.  Lincoln  well  says: 

"The  Convention  of  1894  was  fortunate  in  being  held  so  soon  after 
the  judiciary  commission  of  1890  had  submitted  its  recommendations  to 
the  legislature,  and  whose  work  was  thus  fresh  in  the  minds  of  law- 
yers ;  it  was  also  fortunate  in  having  among  its  delegates  two  prominent 
members  of  that  commission, — Mr.  Choate  and  Mr.  Marshall, — who 
were  able  to  speak  intelligently  of  the  plans,  purposes,  and  deliberations 
of  the  commission.  *  *  *  It  is  a  high  tribute  to  that  commission, 
whose  work  was,  apparently,  not  well  received  at  the  time,  and  which 
was  not  considered  by  the  legislature,  that  in  less  than  four  years  the 
chief  features  of  the  judiciary  system  proposed  by  it  were  incorporated 
in  the  constitution  by  a  convention  which  apparently  could  find  no  better 
solution  of  the  then  troublesome  judiciary  problem." 

Section  2,  Article  VI  was  amended  in  1905  to  allow  any  appellate 
division  justice  when  not  actually  engaged  in  performing  the  duties  of 


STATE   OF   NEW   YORK  331 

appellate  division  justices  involved  a  partial  reversion 
to  the  former  appointive  system.  From  all  justices  elected 
to  the  Supreme  Court  the  governor  was  to  designate  the 
justices  to  constitute  the  appellate  division  in  each  depart- 
ment— the  presiding  justice  to  continue  as  such  during  the 
term  of  his  office;  the  other  justices  to  sit  for  terms  of 
five  years,  or  the  unexpired  portions  of  their  respective 
terms  of  office,  if  less  than  five  years. 

The  convention  wrought  a  beneficent  work  when  it 
proposed  the  abolition  of  the  superior  city  courts.  There 
were  splendid  traditions  attached  to  all  of  these  tribunals, 
but  they  had  fulfilled  their  functions.  In  so  far  as  their 
jurisdiction  was  transcended  by  that  of  the  Supreme  Court, 
positive  injury  had  often  been  done  to  litigants.  When 
their  jurisdiction  grew  to  be  practically  commensurate  with 
that  of  the  Supreme  Court,  all  reason  for  their  separate 
existence  ceased.  The  day,  let  us  hope,  will  eventually 
dawn  when  the  probate  court  will  be  merged  in  the  Supreme 
Court,  and  the  serious  difficulties  regarding  its  jurisdiction 
which  have  often  perplexed  lawyers  and  worked  injury 
to  estates  altogether  disappear.  Conflicts  in  which  ques- 
tions of  jurisdiction  are  alone  involved  should  be  un- 
necessary and  are  often  inexcusable.  There  would  seem 
to  be  no  reason  why  a  will  should  not  be  proved  in  the 
Supreme  Court  in  every  instance,  the  proceeding  being  in- 
stituted by  summons  instead  of  by  citation.  Such  anomalies 
as  the  upholding  of  a  will  as  valid  in  so  far  as  it  disposes 
of  personal  estate  and  the  adjudging  it  to  be  invalid  as  a 
will  of  real  estate  (anomalies  which  have  actually  occurred) 
would  then  ceaseJ 


an  appellate  division  justice  in  the  department  to  which  he  was  desig- 
nated, to  hold  any  term  of  the  Supreme  Court  and  exercise  any  of 
the  powers  of  a  justice  thereof  in  any  county  or  judicial  district  in 
any  other  department. 

^  In  the  English  system  of  jurisprudence,  courts  of  probate  and 
divorce  have  been  welded  with  the  common  law  courts.  A  special  com- 
mittee of  distinguished  lawyers  recently  reported  to  the  American  Bar 


332  CONSTITUTIONAL   HISTORY 

The  constitutional  commission  of  1890  was  in  favor  of 
abandoning  pensions  to  judges  of  the  court  of  appeals  and 
justices  of  the  Supreme  Court  elected  after  November  i 
of  that  year,  but  unable  to  complete  their  terms  of  office 
because  of  age.  It  proposed  to  continue  the  pension  as  to 
all  then  in  office,  provided  that  to  receive  a  pension  a  judge 
or  justice  should  have  served  ten  years  of  the  term  abridged 
by  the  age  limit.  The  judiciary  committee  in  the  conven- 
tion of  1894  and  also  the  convention  itself  substantially 
adopted  the  recommendations  of  the  commission  of  1890, 
the  only  difference  in  plan  being  that  the  convention  re- 
solved that  no  judge  elected  after  January  i,  1894,  should 
be  entitled  to  receive  a  pension  wherever  his  term  was  cut 
short  by  the  age  limitation. 

The  judiciary  system,  as  the  convention  of  1894  pro- 
posed to  reconstruct  it,  was  approved  by  the  people  to- 
gether with  the  other  work  of  the  convention.  In  the 
main  it  has  given  satisfaction.  The  constitutional  changes 
made  in  it  in  more  recent  years  have  increased  the  number 
of  trial  justices  in  certain  districts,  notably  the  first  and 
the  second,  and  created  a  ninth  judicial  district  within  the 
second  department  out  of  the  counties  oi  Westchester, 
Dutchess,  Putnam,  Orange  and  Sullivan,  formerly  included 
in  the  second  district. 

The  appellate  divisions  have   in   the  main  been   well 

Association  in  favor  of  a  unification  of  the  judicial  system,  declaring 
that  the  whole  judicial  power  of  each  State,  at  least  for  civil  causes, 
should  be  vested  in  one  great  court,  of  which  all  tribunals  should  be 
branches,  departments  or  divisions.  The  business  as  well  as  the  judicial 
administration  of  this  court  should  be  thoroughly  organized  so  as  to 
prevent  not  merely  waste  of  judicial  power,  but  all  needless  clerical 
work,  duplication  of  papers  and  records,  and  the  like,  thus  obviating 
expense  to  litigants  and  cost  to  the  public. 

There  is  strong  opposition  in  the  rural  counties  of  the  State  to 
the  abolition  of  either  the  county  court  or  the  surrogate's  court.  These 
judicial  officers,  especially  the  surrogates,  are  often  able  to  give  advice 
that  dispenses  with  the  necessity  of  employing  lawyers.  They  are 
consequently  popular  and  an  amendment  proposing  to  abolish  these 
courts  would  perhaps  endanger  the  ratification  of  the  new  constitution. 


STATE   OF   NEW   YORK  333 

equipped,  the  designations  of  justices  have  been  excellent, 
and  the  new  courts  have  made  valuable  contributions  to 
the  jurisprudence  of  the  State.  In  their  rule-making  func- 
tions they  may  perhaps  exercise  too  much  power  over  jus- 
tices sitting  at  trial  and  special  terms,  for  these  interme- 
diate appellate  courts  are  authorized  to  designate  the  parts 
in  which  trial  judges  shall  preside  during  each  year.  If 
criticism  of  the  constitution  may  be  ventured,  it  would 
seem  to  have  failed  in  limiting  the  court  of  appeals  to  the 
review  of  questions  of  law.  In  part  this  failure  may  be 
due  to  the  provisions  of  sections  190,  191,  Code  of  Civil 
Procedure.  The  anomaly  frequently  occurs  of  a  record 
with  irrefragable  evidence  of  the  truth  of  certain  facts, 
the  existence  of  which  the  findings  distinctly  negative,  but 
wherever  the  affirmance  below  has  been  unanimous  the 
record  may  not  be  examined  to  ascertain  whether  the  find- 
ings and  the  evidence  conform.  The  sentiment  of  the 
profession  seems  to  favor  the  prohibition  of  any  appeal 
to  the  court  of  appeals  unless  the  appellate  division  permits 
it  to  be  taken,  or  if  permission  is  refused,  the  appeal  is 
allowed  by  the  court  of  appeals  or  a  judge  thereof. 

There  is  one  tribunal  in  this  State  not  strictly  withii_.  ^ 
the  category  of  a  court  that  might  well  be  made  a  consti-  \ 
tutional  body,  and  that  is  the  Board  of  Claims.  In  the 
State  of  New  York  since  the  year  1870  gwa.y^*- judicial  boards 
or  bodies  have  existed  to  which  claims  against  the  State 
have  been  referred  by  the  legislature.  These  boards  have 
latterly  become  political  prizes,  with  the  result  that  at  each 
change  of  political  power  1  at  Albany  the  legislature  has 
abolished  the  existing  board  or  court  of  claims,  substituting 
in  its  stead  a  new  one  with  identical  jurisdiction — for  the 
sole  purpose  of  rewarding  its  own  partisans  with  seats  in 
the  new  tribunal.  This  has  become  such  a  scandal  that  the 
creation  of  a  board  of  claims  as  a  constitutional  body  is 
now  advocated. 

Under  our  present  system  our  courts  of  justice  pass 


334  CONSTITUTIONAL   HISTORY 

upon  many  subjects  not  distinctively  judicial,  but  largely 
if  not  wholly  administrative.  We  might  well  consider 
whether  the  creation  of  administrative  courts  to  work  side 
by  side  with  the  regular  judicial  tribunals  would  not  be 
desirable.  The  creation  of  a  tribunal  charged  with  purely 
administrative  functions,  including  jurisdiction  over  claims 
against  the  State,  would  relieve  courts  of  justice  from  con- 
sideration of  subjects  administrative  and  not  judicial  in 
origin,  as  for  example,  controversies  about  removal  of  of- 
ficers and  employees  of  the  State  or  city.  Trials  of  police 
or  other  public  servants  would  take  place  before  some 
branch  of  this  tribunal.  Its  jurisdiction  might  v/ell  cover 
cases  arising  under  the  election  and  primary  laws ;  proceed- 
ings to  enforce  orders  of  departments  and  bureaus  (of  the 
Board  of  Health,  for  example,  review  of  which  is  often 
sought  in  the  regular  courts),  and  to  recover  penalties; 
reviews  of  assessments  for  taxation,  and  perhaps  the  whole 
subject  of  condemnation  proceedings.  There  should  be  no 
conflict  between  such  a  court  and  the  Supreme  Court.  It 
might  be  made  a  permanent  court  of  high  usefulness  and 
dignity  and  become  of  valuable  service  in  facilitating  the 
administration  of  the  fiscal  affairs  of  the  State — in  fact,  it 
might  operate  in  some  measure  like  the  administrative  courts 
upon  the  continent  of  Europe  which  have  proven  excep- 
tionally efficient  and  satisfactory.  The  constitution  might 
well  be  amended  to  authorize  its  establishment.  A  few 
words  of  change  would  give  the  legislature  necessary  power. 

As  through  the  praetorian  edicts  in  ancient  Rome,  the 
historian  gains  a  vivid  idea  of  the  character  and  habits  of 
its  people,  so  through  judicial  decisions  the  life  of  modern 
society  becomes  comprehensible  and  is  invested  with  intense 
human  interest.  The  reported  cases  contain  a  dramatic 
history  of  personal  strife,  family  contentions,  commercial 
and  political  rivalries,  struggles  of  classes  and  ideas;  they 
mark  also  the  milestones  of  constitutional  evolution.    The 


STATE   OF   NEW   YORK  335 

first  Supreme  Court  and  the  court  of  errors  were  the  tri- 
bunals of  a  new  commonwealth  largely  agricultural,  in 
which  questions  of  title  to  land  were  of  primary  impor- 
tance— a  commonwealth  dominated  by  great  landed  inter- 
ests, but  deficient  in  manufacturing  resources  and  in  wealth. 
The  cases  of  that  day  were  mostly  trespass  and  ejectment, 
or  grew  out  of  claims  upon  marine  policies  for  losses  upon 
the  high  seas  during  the  Revolution.  Numerous  legal  com- 
plications sprang  from  the  wars  in  Europe,  and  later,  from 
the  War  of  18 12  between  Great  Britain  and  the  United 
States.  In  the  second  period  the  causes  before  the  courts 
increased  in  variety  and  complexity.  There  are  many  "per 
curiam"  or  "curia"  opinions  in  the  reports  of  this  epoch, 
and  opinions  rarely  reached  the  length  of  the  ordinary 
judicial  opinion  of  the  present  day.^  New  classes  of  liti- 
gations began  to  tax  the  consideration  of  the  judiciary, 
among  them  cases  of  powers  and  trusts,  due  to  the  revision 
of  the  statutes  in  1828.  Later,  an  even  more  highly  or- 
ganized society  is  revealed  in  the  decisions,  which  include 
controversies  about  fire  insurance,  banking,  negotiable  in- 


'It  is  rare  today  for  a  judge  to  merit  praise  for  terse  and  com- 
pact writing,  such  praise  as  was  justly  given  by  D.  D.  Barnard  to  Chief 
Judge  Spencer.  Concerning  his  brief  yet  masterly  opinion  in  Griswold 
V.  Haddington,  15  Johnson's  Reports,  57,  his  biographer  says:  "The 
opinion  is  comprised  in  about  four  pages  of  the  volume  where  it  is 
found,  and  it  would  be  hard  to  find  in  the  whole  range  of  our  judicial 
records  a  more  clear,  comprehensive,  condensed,  well-reasoned  and  con- 
clusive opinion.  John  Marshall,  Theophilus  Parsons  and  Ambrose 
Spencer  were,  I  think,  the  only  judges  of  their  time  in  this  country 
who  delivered  such  opinions  as  this."  The  opinions  of  the  court  of 
appeals  at  present  deal  too  elaborately  with  questions  of  fact.  It  was 
expected  that  recent  constitutional  changes  would  relieve  the  court  of 
the  necessity  of  discussing  the  facts;  the  contrary  seems  to  be  the  re- 
sult. In  many  cases  differences  among  the  judges,  often  expressed  in 
long  opinions,  arise  from  contradictory  interpretations  of  the  facts. 
A  grave  evil  is  the  habit  of  quoting  at  length  from  earlier  decisions. 
And  an  earnest  and  energetic  effort  should  be  made  to  check  the  ac- 
cumulation of  printed  case  reports,  and  to  limit  the  number  of  cases 
to  be  treated  as  precedents.  The  legislature  has  power  to  do  this;  if 
not,  the  constitution  should  ^ive  it  power. 


336  CONSTITUTIONAL   HISTORY 

struments,  sales  of  personal  property  and  other  suits  denot- 
ing the  existence  of  a  complex  community,  and  later  still 
come  cases  arising  from  the  creation  and  operation  of  rail- 
roads and  the  development  of  cities.  The  law  of  negligence 
in  its  various  ramifications  is  the  theme  of  numerous  deci- 
sions, the  law  of  eminent  domain,  of  many  others,  and 
almost  a  legion  of  causes  has  grown  out  of  the  many 
aspects  of  corporation  law.  The  cases  exhibit  what  has 
well  been  called  "the  ever  growing  miscellaneousness  of 
modem  society."  The  bulk  of  decisions  has  unfortunately 
been  increased  by  the  passage  of  the  Code  of  Procedure 
and  the  Code  of  Civil  Procedure. 

For  forty-six  years  judicial  and  legislative  functions 
were  strangely  commingled,  judges  sitting  as  legislators  in 
the  council  of  revision,  and  senators  sitting  as  judges  in 
the  court  of  errors.  In  the  second  period  the  senators  still 
did  judicial  duty,  although  the  council  of  revision  had 
passed  into  oblivion.  Sharper  lines  of  demarcation  between 
these  two  branches  of  government  were  drawn  in  the  con- 
stitution of  1847,  and  about  that  time  the  judiciary  began 
increasingly  to  employ  its  power  to  decide  upon  the  consti- 
tutionality of  acts  of  the  law-making  body.  In  few  instances 
under  the  first  constitution  did  the  courts  declare  acts  of 
the  legislature  void.  The  infrequency  of  such  decisions 
has  sometimes  been  ascribed  to  the  fact  that  the  council  of 
revision  was  in  the  habit  of  vetoing  unconstitutional  laws. 
That  explanation  is  not  adequate,  for  of  the  6,590  bills 
which  came  before  the  council  it  vetoed  only  83  on  consti- 
tutional grounds.  During  the  time  that  the  second  consti- 
tution was  in  operation  few' statutes  were  declared  repug- 
nant to  it.  Such  decisions  were  rare  prior  to  1847,  in  fact 
the  date  when  the  courts  of  this  State  began  freely  to 
use  this  power  might  be  put  far  later.  While  members  of 
the  senate  sat  in  the  court  of  errors  and  appeals  that  court 
may  have  been  less  likely  to  condemn  statutes  in  the  passage 
of  which  its  senatorial  members  had  taken  part.     With 


STATE   OF    NEW   YORK  337 

due  allowance  for  all  this  it  is,  nevertheless,  a  patent  fact 
that  the  disposition  of  the  judiciary  to  nullify  legislation  has 
greatly  increased  during  the  last  few  decades. 

Several  causes  may  be  assigned :  deterioration  in  the 
character  of  legislation  in  the  absence  of  a  council  of 
revision;  the  greater  complexity  of  the  constitution,  to- 
gether with  the  numerous  checks  which  it  puts  upon  legis- 
lative action;  the  frequency  with  which  the  fourteenth 
amendment  to  the  Constitution  of  the  United  States  is 
invoked  against  State  legislation.  Whether  legislation  is 
more  defective  than  formerly  there  is  no  means  of  ascer- 
taining. Bills  are  drawn  with  haste  and  carelessness,  yet 
there  is  far  keener  public  scrutiny  of  important  legislative 
measures.  Occasionally  legislatures  do  pass,  and  governors 
approve,  bills  of  doubtful  constitutionality,  leaving  it  to 
the  courts  to  apply  the  corrective;  but  this  does  not  often 
happen.  The  number  of  instances  in  which  the  tribunals 
of  this  State  have  held  its  statutes  violative  of  the  nation's 
organic  law  is  not  large.  The  greater  complexity  of  the 
constitution  and  the  great  number  of  checks  it  has  affixed 
to  legislative  action  partly  explain  the  growing  tendency 
of  the  courts  to  declare  legislation  void.  Whatever  the 
causes,  the  judges  have  no  wish  to  usurp  power,  but  the 
responsibility  of  declaring  laws  to  be  unconstitutional  be- 
longs to  them.  If  the  constitution  to-day  prescribe  a  score 
of  checks  upon  the  legislature  where  but  one  or  two  existed 
sixty  years  ago,  the  judges  must  fulfil  their  obligations. 
In  an  age  when  criticism  of  the  courts  is  common,  when 
they  are  censured  by  public  men  and  the  press  for  doing 
what  is  a  simple  matter  of  duty,  it  should  be  remembered 
that  the  duty  is  not  self -assumed — but  a  task  that  is  imposed 
upon  them.  Nor  do  courts  of  their  own  impulse  pass 
upon  legislation,  however  offensive  it  may  be  to  consti- 
tutional principles;  they  await  the  demand  of  some  ag- 
grieved individual  who  formulates  his  objection  in  a  suit. 


338  CONSTITUTIONAL   HISTORY 

Thus  direct  collisions  among  the  several  departments  of 
government  are  avoided.^ 

How  admirably  this  system  makes  for  tranquillity  and 
avoids  friction  between  the  national  and  the  State  govern- 
ment, has  often  been  noted  by  foreign  writers.  As  Mr. 
Bryce  observes:  "The  court  does  not  go  to  meet  the 
question;  it  waits  for  the  question  to  come  to  it.  When 
it  acts,  it  acts  at  the  instance  of  a  party.  *  *  *  This 
method  has  the  merit  of  not  hurrying  a  question  on,  but 
leaving  it  to  arise  of  itself.  *  *  *  A  State  might  be  pro- 
voked to  resistance,  if  it  saw  as  soon  as  it  had  passed  a 
statute,  the  federal  government  inviting  the  Supreme  Court 
to  declare  that  statute  invalid."  ^^ 

In  his  essay  upon  "Popular  Governmenf  *  Sir  Henry 
Maine  says  that  the  process  of  passing  upon  legislation 
by  suit  "is  slower,  but  it  is  freer  from  suspicion  of 
pressure  and  much  less  provocative  of  jealousy  than  the 
submission  of  broad  and  emergent  propositions  to  a  judi- 


•In  the  "Power  of  the  Federal  Judiciary  Over  Legislation" 
(Putnams,  1912)  I  have  aimed  to  summarize  the  proof  that  before 
the  formation  of  the  present  union  the  power  of  the  judiciary  to 
adjudge  laws  repugnant  to  the  State  constitution  to  be  void  had  several 
times  been  exercised  and  was  commonly  understood  to  be  an  attribute 
of  the  judicial  function;  that  the  decisions  in  which  laws  had  for  this 
reason  been  condemned  were  known  to  the  delegates  when  they  as- 
sembled at  the  Federal  convention  in  May,  1787;  that  in  the  discussions 
in  the  convention  and  also  in  the  debates  in  the  ratifying  conventions 
held  in  the  different  States  the  existence  of  the  power  was  generally 
conceded.  Among  other  things,  I  aimed  to  show  that  Judge  Walter 
Clark  of  North  Carolina  and  Senator  Owen  were  mistaken  in  assert- 
ing that  the  convention  of  1787  four  times  voted  down  a  proposal  to 
confer  such  power  upon  the  judiciary  and  I  have,  I  think,  made  clear 
that  the  proposal  defeated  upon  four  separate  occasions  was  a  proposal 
to  create  a  council  of  revision — similar  to  the  council  of  revision  in 
New  York's  first  constitution — with  a  qualified  negative  upon  all  laws, 
whether  constitutional  or  otherwise.  One  reform  advocated  in  that 
book  has  been  happily  accomplished  in  the  recent  change  in  the  Fed- 
eral law  which  allows  review  in  the  highest  court  of  the  nation  of 
decisions  of  State  tribunals  holding  void  State  statutes  repugnant  to 
the  nation's  organic  law. 

*•  American  Commonwealth,  I,  p.  252.  -. 


STATE   OF   NEW   YORK  339 

cial  body;  and  this  submission  is  what  an  European  for- 
eigner thinks  of  when  he  contemplates  a  Court  of  Justice 
deciding  on  alleged  violations  of  a  constitutional  rule  or 
principle."  ^^ 

Had  the  Constitution  of  the  United  States,  like  the  first 
constitution  of  the  State  of  New  York,  authorized  a  council 
of  revision  to  interpose  its  veto,  the  peace  of  the  country 
might  time  and  again  have  been  threatened  and  perhaps 
overthrown.  The  serious  collisions  between  the  council  of 
revision  and  the  State  legislature  about  bank  charters  and 
measures  to  strengthen  the  federal  government  in  the  War 
of  1812,  and  to  enlarge  the  judicial  force,  and  finally,  about 
the  convention  bill  of  1820,  caused  the  downfall  of  the 
council.  Since  1822  State  courts  have  been  discharging 
purely  judicial  functions,  and  the  old  antipathy  between  the 
legislature  and  the  judiciary  no  longer  exists. 

At  a  time  when  distinguished  judges  are  criticised  as 
"fossilized  minds,"  it  may  be  well  to  recall  the  functions  of 
the  courts.  As  was  eloquently  said  by  Evarts  in  the  con- 
vention of  1867,  "the  judiciary  is  the  representative  of  the 
justice  of  the  State  and  not  of  its  power.  *  *  *  The  judge 
is  not  to  declare  the  will  of  the  sovereignty,  whether  that 
sovereignty  reside  in  a  crowned  king,  in  an  aristocracy  or 
in  the  unnumbered  or  unnamed  mass  of  the  people."  The 
judges  declare  the  law,  they  do  not  make  it.  Necessarily 
and  properly  the  judiciary  is  the  most  conservative  branch 
of  government.  Recognizing  the  value  of  the  accumulated 
experiences  of  the  past  and  the  continuity  of  legal  evolu- 
tion that  runs  through  history,  it  is  for  the  courts  to  say, 
not  what  they  think  the  law  should  be,  but  what  it  is ;  and 
in  a  free  community  capable  of  altering  its  jurisprudence 
by  legislation  or  constitutional  change  at  the  need  of  society 
it  rarely  happens  that  any  long  divorce  will  exist  between 
the  law  and  enlightened  public  sentiment.     The  judiciary 


"Popular  Government,  p.  224. 


340  CONSTITUTIONAL   HISTORY 

constitutes  a  salutary  check  upon  crude  public  opinion. 
It  is  an  obstacle  wisely  set  in  the  way,  not  of  the  public  will, 
but  of  what  James  Russell  Lowell  happily  styled  the  public 
whim.  In  the  discharge  of  its  duty  of  declaring  what  the 
law  is,  it  should  be  steadfastly  kept  independent  of  all 
influences  which  might  tempt  it  to  fail  in  its  obligations. 
The  need  of  an  independent  judiciary  was  never  more 
imperative  in  the  history  of  the  country.  The  power  of 
determining  when  an  "act  of  a  delegated  authority  contrary 
to  the  tenor  of  the  commission  under  which  it  is  exercised 
is  void"  must,  as  Hamilton  luminously  argued,  be  lodged 
in  the  judiciary,  if  the  constitution  is  to  remain  in  fact  as 
well  as  in  theory  the  ultimate  governing  law. 

The  rational  employment  of  this  far  reaching  preroga- 
tive of  the  judiciary  is  essential  for  the  protection  of  the 
people,  even  against  themselves,  and  for  the  security  of 
private  rights.  But  if  the  impression  should  become  wide- 
spread that  it  was  tyrannically  or  arbitrarily  exercised,  the 
people  would  undoubtedly  abridge  the  tenure  of  the  judi- 
cial office  or  otherwise  bring  the  bench  more  directly  under 
the  influence  of  public  opinion  in  making  its  decisions — 
which  would  be  an  evil  of  incalculable  consequence.  The 
judiciary  is  not  a  species  of  upper  legislative  chamber  with  a 
possible  final  veto  upon  every  statute  which  judges  may 
happen  to  think  unwise.  In  an  age  when  the  constitution- 
ality of  legislation  is  assailed  at  every  step  in  its  making 
— in  its  passage  through  the  houses,  and  in  its  submission 
to  the  executive — the  courts,  while  jealously  safeguarding 
all  their  prerogatives,  should  remember  that  the  question  is 
not  whether  had  they  been  the  legislature  they  would  have 
enacted  the  law  under  criticism,  but  simply  whether  in 
passing  it  law-makers  have  transcended  constitutional  au- 
thority. 

The  independence  of  the  judiciary  rests  vitally  upon 
permanency  of  tenure,  and  so  long  as  the  courts  use  their 
vast  powers  temperately,  no  measures  need  be  taken  to  re- 


STATE   OF   NEW   YORK  341 

establish  the  equilibrium  between  the  legislative  and  the 
judicial  branches  of  the  government;  in  fact  the  equilibrium 
will  not  be  disturbed.  As  Hamilton  well  said,  judicial 
independence  is  the  citadel  behind  which  justice*  sits  safe 
and  serene.  With  an  unstable  judiciary,  how  different 
might  have  been  the  decisions  of  the  Federal  courts,  how 
altered  the  history  of  the  country !  Attacks  have  been  made 
upon  it,  and  are  even  now  threatened.  The  use  by  the 
Federal  bench  under  Marshall's  leadership  of  the  power  to 
declare  acts  of  Congress  void  when  they  conflicted  with 
the  Federal  Constitution  aroused  Jefferson's  wrath  ^^  and 
led  to  a  proposed  constitutional  amendment  introduced  in 
Congress  by  John  Randolph  in  March,  1805.  Had  such  an 
amendment  been  passed,  all  Federal  judges  would  have 
been  removable  by  the  president  upon  the  joint  address 
of  both  houses  of  Congress  without  cause;  the  courts  would 
have  become  responsive  to  every  transitory  popular  feel- 
ing. Defeated  in  1805,  ^^^  amendment  was  proposed  again 
in  substantially  the  same  form  in  1806,  but  without  result. 
In  1807,  Senator  Tiffin  of  Ohio  moved  an  amendment  that 
all  judges  of  the  United  States  should  hold  for  a  term  of 
years,  subject  to  removal  by  the  president  on  address  by 
two-thirds  of  both  houses.  Senator  Tiffin's  motion  was  not 
an  isolated  or  personal  act.  The  State  legislatures  were 
invoked  to  support  the  scheme.  "Vermont  favored  the 
amendment.  The  house  of  delegates  in  Virginia,  both 
branches  of  the  Pennsylvania  legislature,  the  popular 
branch  in  Tennessee  and  various  other  State  governments, 
in  whole  or  in  part,  approved  its  principle  and  urged  it 


"  Jefferson  was  consistent  even  to  old  age  in  his  belief  that  the 
federal  courts  ought  to  be  curbed.  Writing  to  James  Pleasants,  De- 
cember 6,  1821,  he  declared  that  the  best  remedy  he  could  devise  "would 
be  to  give  future  commissions  to  judges  for  six  years  (the  senatorial 
term)  with  a  reappointability  by  the  President  with  the  approbation  of 
both  Houses."  The  adoption  of  such  a  plan  would  have  been  destruc- 
tive of  judicial  independence. 


34^  CONSTITUTIONAL  HISTORY 

upon  Congress.  In  the  house  George  W.  Campbell  moved 
a  similar  amendment  January  30,  and  from  time  to  time 
other  senators  and  members  made  attempt  to  bring  the 
subject  forward."  ^^ 

In  the  house,  Wright  of  Maryland  in  181 1,  and  in  the 
senate,  Nathan  Sanford  of  New  York  in  181 6,  urged  a 
similar  amendment. 

When  under  the  leadership  of  Marshall  and  Story  the 
Supreme  Court  began  to  declare  unconstitutional  State 
legislation  that  was  in  violation  of  the  "supreme  law,'*  this 
action  of  that  tribunal  was  construed  by  ultra  State  rights 
men  as  an  affront  to  the  majesty  of  State  independence, 
and  accordingly  attempts  were  made  to  bridle  the  courts 
and  curb  their  jurisdiction.  In  1822  Richard  M.  Johnson 
of  Kentucky  offered  in  the  senate  an  amendment  which  is : 
'That  in  all  controversies  where  the  judicial  power  shall 
be  so  construed  as  to  extend  to  any  case  in  law  or  equity, 
arising  under  the  constitution,  the  laws  of  the  United 
States,  or  treaties  made  or  which  shall  be  made  under 
their  authority,  and  to  which  a  State  shall  be  a  party,  and 
in  all  controversies  in  which  a  State  may  desire  to  become 
a  party,  in  consequence  of  having  the  constitution  or  laws 
of  such  State  questioned,  the  senate  of  the  United  States 
shall  have  appellate  jurisdiction.'' 

This  not  coming  to  a  vote,  proposals  were  subse- 
quently submitted  in  the  house  of  representatives  to  amend 
the  constitution  by  limiting  the  term  of  Federal  judges, 
but  all  failed  of  success;  and  their  failure  brought  an  end 
for  years  to  attacks  upon  the  independence  of  the  Federal 
courts.  Dissatisfaction  with  Federal  judicial  action  has  of 
late  aroused  some  to  advocate  election  of  Federal  judges 
and  for  short  t^rms.  To  follow  such  counsel  would  be 
not  only  to  ignore  the  lessons  of  history,  to  cast  away  our 
heritage,  to  destroy  the  wise  separation  of  governmental 


"Henry  Adams,  Hist  of  the  U.  S.,  IV,  205. 


STATE   OF   NEW   YORK  343 

powers,  but  inevitably  to  bring  the  bench  into  politics,  and 
have  law  declared  at  the  ballot  box,  according  to  popular 
passion,  instead  of  in  the  judges'  consulting  room,  in 
conformity  with  the  principles  of  jurisprudence. 


344  CONSTITUTIONAL   HISTORY 


CHAPTER   XVIII 

VOTE  IN    1886  FOR  A  CONVENTION DIFFERENCES  BETWEEN 

LEGISLATURE  AND  GOVERNOR LEGISLATION   PROVIDING 

FOR    CONVENTION ELECTION    OF    DELEGATES    IN    FALL 

OF     1893 OUTLINE    OF     WORK    OF    THE     CONVENTION 

OTHER   THAN    UPON   THE  JUDICIARY  ARTICLE,   AND  IN 

RELATION    TO    CANALS TREATMENT    OF    ARTICLE    XIV 

RE-APPORTIONMENT     IN     SENATE     AND     ASSEMBLY 

convention's   report SUBMISSION    OF    ITS   WORK    TO 

THE      PEOPLE — LATER      CONSTITUTIONAL      CHANGES — 
RELATIVE   VALUE    OF    METHODS    OF   AMENDMENT. 

Section  2  of  Article  XIII  of  the  constitution,  as  it  stood 
before  the  changes  made  in  1894,  prescribed  in  brief  that 
at  the  general  election  in  the  year  1886  and  every  twentieth 
year  thereafter,  and  also  at  such  times  as  the  legislature 
might  by  law  provide,  the  electors  qualified  to  vote  for 
members  of  the  legislature  should  have  opportunity  to 
decide  whether  a  convention  should  be  called  to  revise 
and  amend  the  constitution,  and  that  if  a  majority  of 
the  qualified  electors  voting  upon  the  subject  should 
favor. a  convention,  the  legislature  at  its  succeeding  session 
should  provide  for  the  election  of  delegates  thereto.  In 
1886  the  popular  vote  for  a  convention  overwhelmingly 
preponderated  over  the  vote  against  it,  being  574,993  to 
30,766;  in  other  words,  ninety-five  per  cent,  of  those  vot- 
ing upon  the  subject  wished  a  convention  called.  Never 
before  in  the  history  of  the  State  had  there  been  such  a 
decisive  expression  in  favor  of  calling  a  convention.  In 
1 82 1  out  of  a  total  vote  of  144,247  upon  the  question  of  a 


STATE   OF   NEW   YORK  345 

convention  or  no  convention,  109,346  favored  a  conven- 
tion— almost  seventy-six  per  cent,  of  the  total  vote.  In 
1846  the  percentage  of  voters  who  wished  a  convention 
called  (213,257  out  of  247,117)  was  so  large  as  to  impel 
Governor  Wright,  in  his  message  to  the  legislature,  to  de- 
clare that  the  people  of  the  State  had  "with  a  unanimity 
almost  unknown  in  the  history  of  our  elections"  decided  to 
hold  a  convention.  In  1866  the  vote  for  the  holding  of  a 
convention,  352,854  in  favor,  to  256,354  against  it,  was 
said  by  Governor  Fenton  to  be  "an  emphatic  expression  of 
the  public  judgment  that  some  modification  of  the  organic 
law"  was  essential. 

The  demand  for  a  convention  in  1886,  although  sup- 
ported by  a  heavily  favorable  vote,  was  ignored  for  several 
years  because  of  the  inability  of  Governor  Hill  and  the 
State  legislature  to  agree  upon  the  method  of  selecting 
delegates.  The  conflict  between  the  executive  and  the 
legislative  department  of  the  government  had  one  beneficent 
result;  it  led  to  the  formation  and  adoption  of  a  provision 
in  the  amended  constitution  which  in  future  cases  should 
render  such  a  deadlock  impracticable.  The  controversy 
came  to  an  end  with  the  election  of  Governor  Flower  and 
Democratic  control  of  both  houses.  In  his  first  annual  mes- 
sage the  governor^urged  action  to  make  the  popular  man- 
date effective,  arguing  that  the  disinclination  shown  by  the 
preceding  legislature  to  approve  the  revision  of  the  judi- 
ciary article  proposed  by  the  constitutional  commission  of 
1890  seemed  to  make  the  holding  of  a  convention  more 
than  ever  necessary.  The  legislature  passed  a  law  ^  pre- 
scribing that  an  election  should  be  held  on  the  second  Tues- 
day of  February,  1893,  for  the  choice  of  delegates.  The 
act  fixed  the  number  of  delegates  at  171,  of  whom  128  were 
to  be  chosen  by  assembly  districts,  32  to  be  elected  from 
the  State  at  large.     Provision  was  made  for  minority  rep- 


*  Chapter  398,  Laws  of  1892. 


346  CONSTITUTIONAL   HISTORY 

resentation,  as  no  elector  might  vote  for  more  than  i6  of 
the  delegates  at  large.  The  governor  was  authorized  to 
appoint  eight  persons  to  sit  in  the  convention  with  all  the 
rights  of  elected  delegates,  three  of  the  persons  so  to  be 
appointed  to  be  representatives  of  the  Prohibition  party, 
and  five,  representatives  of  labor  organizations.  Here  for 
the  first  time  in  the  history  of  the  State  was  manifested  a 
disposition  to  secure  class  representation  in  a  constitutional 
convention.  The  constitutionality  of  the  provision  was  ex- 
tremely doubtful.  The  delegates  were  directed  to  convene 
in  the  assembly  chamber  at  the  capitol  on  the  second  Tues- 
day of  May,  1893.  The  amendments  or  the  revised  con- 
stitution which  might  be  the  outcome  of  their  deliberations 
were  to  be  submitted  to  the  people  for  adoption  or  rejection 
at  the  general  election  in  that  year.  The  convention 
act  contained  various  other  provisions;  for  example,  that 
vacancies  in  the  election  of  district  delegates  should  be  filled 
at  a  special  election  in  the  same  manner  as  vacancies  in  the 
office  of  a  member  of  assembly,  and  that  vacancies  in  the 
office  of  delegate  at  large  should  be  filled  by  the  convention. 
The  new  constitution  was  to  take  effect  from  and  after 
December  31,  1893,  unless  the  convention  should  fix  a  dif- 
ferent date;  and  no  amendment  receiving  less  than  a  ma- 
jority of  all  the  votes  given  upon  it  was  to  be  treated  as 
ratified. 

Before  the  date  fixed  for  the  election  of  delegates,  the 
legislature  passed  a  new  convention  act  which,  on  January 
27,  1893,  met  with  the  governor's  approval.^  The  radical 
differences  between  it  and  the  act  of  1892  are  worthy  of 
notice.  By  the  act  of  1893,  delegates  were  to  be  chosen 
not  at  a  special  election,  as  prescribed  in  the  law  of  1892, 
but  at  the  general  election  in  November,  1893,  and  the 
number  of  delegates  was  fixed  iat  175  instead  of  171. 
Under  the  act  of  1892,  district  delegates  were  to  be  elected 


*  Chapter  8,  Laws  of  1893. 


STATE   OF   NEW   YORK  347 

from  assembly  districts;  the  act  of  1893  made  the  unit  the 
senate  district;  160  delegates  to  be  chosen  in  senate  dis- 
tricts, each  senate  district  to  elect  five.  Fifteen  delegates 
were  to  be  elected  for  the  State  at  large,  to  be  known  as 
delegates  at  large,  and  no  provision  was  made  for  minority 
representation.  The  convention  act  made  eligible  as  a  dele- 
gate any  male  or  female  citizen  of  this  State  above  the 
age  of  twenty-one  years.  Vacancies  among  district  dele- 
gates were  to  be  filled  at  a  special  election  in  the  same  man- 
ner as  vacancies  in  the  office  of  State  senator.  Any  vacancy 
in  the  office  of  delegate  at  large  was  to  be  filled  by  special 
election  in  the  same  manner  as  a  vacancy  in  the  office  of  a 
State  officer.  The  date  of  opening  the  convention  was 
fixed  as  the  second  Tuesday  of  May,  1894.  The  provisions 
for  submission  of  amendments  or  of  a  revised  constitution 
were  similar  to  those  contained  in  the  act  of  1892,  save 
that  all  amendments  were  to  be  submitted  at  the  general 
election  in  November,  1894.  If  ratified  by  the  people  the 
constitution  was  to  take  effect  at  the  end  of  that  year, 
unless  the  convention  should  prescribe  a  different  date. 
The  legislature  in  1894  passed  a  bill  for  the  submission  of 
the  work  of  the  convention  either  at  one  time  or  in  two 
separate  years,  at  the  option  of  the  convention,  but  the 
measure  was  vetoed  by  Governor  Flower.  Mr.  Lincoln 
observes  that  "the  result  of  the  election  of  delegates  to  the 
convention  of  1894  would  not  have  been  materially  different 
in  respect  to  political  representation  if  the  assembly  district 
plan  of  1892  had  been  continued."  ^ 

Pursuant  to  the  act  of  1893,  delegates  were  chosen  at 
the  general  election  in  the  fall  of  that  year ;  the  convention 
met  in  the  assembly  chamber  in  the  capitol  on  the  second 
Tuesday  of  May,  1894,  and  elected  Honorable  Joseph  H. 
Choate  its  president. 

The  work  of  the  convention  upon  the  judiciary  article 


'Constitutional  History  of  New  York,"  III,  p.  2^ 


348  CONSTITUTIONAL   HISTORY 

and  upon  the  canals  has  already  been  noted;  its  treatment 
of  the  subject  of  special  legislation  for  cities  has  also  been 
described.  Its  remaining  work  may  briefly  be  outlined. 
There  was  no  general  desire  or  urgent  need  for  a  thorough 
remodeling  of  the  constitution;  the  principles  incorporated 
in  it  had  not  been  devitalized  in  the  evolution  of  history. 
As  the  president  of  the  convention  wisely  said  upon  taking 
the  chair,  the  convention  had  not  been  summoned  into  being 
to  treat  the  constitution  "with  any  rude  or  sacrilegious 
hands."  The  convention  would,  he  declared,  be  false  to  its 
trust  if  it  should  attempt  "to  tear  asunder  this  structure 
which  for  so  many  years  had  satisfied  in  the  main  the  minds 
of  the  people  of  the  State  of  New  York."  He  briefly 
touched  the  more  important  topics  likely  to  come  before 
the  convention  and  concluded  with  an  exhortation  to  the 
delegates  to  subject  themselves  to  the  "self-denying  ordi- 
nance" that  forbade  "idle  talk,"  since  time  was  precious  and 
many  subjects  would  demand  attention. 

Apart  from  its  reconstruction  of  the  judiciary  system 
the  convention  made  few  radical  changes  in  the  constitu- 
tion. It  dealt  with  the  basic  law  in  a  spirit  of  restraint, 
recognizing  that  it  had  no  mandate  to  work  a  revolution. 
It  placed  both  the  civil  service  *  and  the  cause  of  educa- 
tion upon  a  constitutional  foundation;  framed  an  alto- 
gether new  article  upon  the  subject  of  charities;  enlarged 
the  senate  from  a  membership  of  32,  at  which  it  had  re- 


*In  a  recent  address  before  the  Academy  of  Political  Science  in 
the  City  of  New  York  upon  "The  Civil  Service  Clause  in  the  Consti- 
tution," Mr.  Samuel  H.  Ordway,  who  has  since  been  appointed  Presi- 
dent of  the  New  York  State  Civil  Service  Commission,  after  an  epitome 
of  the  history  of  the  civil  service  movement  in  this  State  prior  to  and 
since  the  adoption  of  the  constitutional  amendment  of  1894,  declared 
that  "the  present  civil  service  provision  of  the  constitution  has  worked 
satisfactorily  and  well ;  it  is  short  and  simple,  and  yet  elastic ;  it  em- 
bodies general  principles  and  avoids  details ;  it  has  been  construed  often 
by  the  courts,  and  its  construction  and  meaning  are  definitely  settled. 
It  should  be  left  as  it  is,  and  retained  in  the  new  constitution  without 
amendment." 


STATE   OF   NEW   YORK  349 

mained  sinc^  1801,  to  50,  and  the  assembly  from  a  member- 
ship of  128,  estabHshed  in  182 1,  to  150,  and  retained  the 
assembly  district  as  the  unit  of  representation  in  the  lower 
house.  It  paid  scant  consideration  to  arguments  for  length- 
ening the  term  of  the  governor,  senators  and  State  officers, 
even  reducing  the  governor's  term  from  three  to  two  years. 
It  made  radical  alterations  in  the  representative  system  by 
providing  that  no  county,  however  populous  it  might  be- 
come, should  have  more  than  one-third  of  all  the  senators; 
and  that  no  two  counties  which  adjoin  or  are  separated 
only  by  public  waters,  should  have  more  than  one-half  of 
all  the  senators.  By  a  vote  of  98  to  58  the  convention 
refused  to  favor  submission  to  the  people  of  the  question 
whether  women  should  participate  in  the  suffrage.  The 
startling  progress  of  the  movement  since  1894  to  confer 
the  electoral  franchise  upon  them  has  elsewhere  been  noted. 
The  convention  added  to  Article  I — the  Bill  of  Rights — 
a  new  section  (18)  declaring  that  the  right  of  action  to 
recover  damages  for  injuries  resulting  in  death  shall  never 
be  abrogated,  nor  the  amount  recoverable  be  subject  to  any 
statutory  limitations.  The  wisdom  of  this  amendment  was 
questioned  by  the  president,  who  asserted  it  to  be  "a  mere 
piece  of  legislation"  which  ought  never  to  have  been  placed 
in  the  constitution.  A  new  section  (6)  in  Article  II,  recog- 
nizing that  the  machinery  of  elections  should  be  under  the 
control  of  the  two  principal  parties,  prescribed  that  all 
registration  and  election  boards  other  than  for  town  meet- 
ings or  village  elections  should  be  bi-partisan  in  character. 
The  propriety '  of  crystallizing  this  doctrine  in  a  constitu- 
tional provision  may  be  debated.  The  subject  of  prison 
labor  perplexed  the  convention,  and  while  approving  the 
policy  which  kept  convicts  from  idleness,  it  forbade  the  sale 
of  products  of  convict  manufacture  for  private  use  in  the 


*For  an  instructive  history  of  the  development  of  the  policy  of 
bi-partisan  representation  in  the  conduct  of  elections,  see  Lincoln,  III, 
115,  et  seq. 


350  CONSTITUTIONAL   HISTORY 

open  market  or  in  any  competition  with  outside  industries, 
but  permitted  their  disposal  to  the  State  itself  or  its  political 
divisions  or  public  institutions  owned  or  controlled  by  it.^ 
It  differentiated  city  elections  from  State  elections,  and 
required  State  elections  to  be  held  in  the  even  numbered 
years  commencing  in  1896.  This  separation  of  city  and 
State  elections  has  proved  invaluable  in  educating  city 
voters  in  the  belief  that  city  government  is  a  business  dis- 
tinct from  national  or  State  government.  The  benefits  of 
the  constitutional  provision  have  proved  to  be  far-reaching. 
Voting  in  local  elections  is  now  carried  on  with  a  freedom 
from  party  affiliations  that  would  have  seemed  well  nigh 
impossible  thirty  years  ago. 

The  convention  initiated  the  sound  policy  of  protecting 
the  lands  of  the  State  known  as  the  forest  preserve,  for- 
bade their  being  leased,  sold  or  exchanged  or  taken  by  any 
corporation  public  or  private,  and  prohibited  the  sale,  de- 
struction or  removal  of  the  timber  thereon.  This  was  the 
first  constitutional  recognition  of  forestation  and  its  grave 
bearing  upon  the  water  system  of  the  State."''  The  con- 
vention left  unchanged  the  provision  discriminating  between 
successful  and  unsuccessful  attempts  at  bribery.  It  added  a 
new  section  containing  a  form  of  oath  or  affirmation  to  be 
taken  by  members  of  the  legislature  and  all  officers,  execu- 


•For  an  admirable  summary  of  the  evils  of  the  competition  of 
prison  labor  with  labor  in  general  and  of  the  arguments  showing  the 
undesirability  of  the  total  abolition  of  prison  labor,  see  "Hadley's 
Economics,"  sections  459-461. 

*In  a  paper  on  "State  Policy  of  Forest  and  Water  Power  Con- 
servation," read  at  the  meeting  of  the  Academy  of  Political  Science, 
November  20,  1914,  Mr.  John  G.  Agar  urged  that  it  would  "be  wise  to 
provide  in  the  new  constitution  for  a  management  of  the  forests,  sepa- 
rate and  distinct  from  the  management  of  the  water  powers."  Any 
citizen  of  the  State  should,  he  claimed,  have  the  right  to  bring  suit 
in  the  Supreme  Court  to  enforce  the  provisions  of  the  constitution 
and  enjoin  their  violation.  Assuming  past  grants  by  the  State  of  water 
power  to  be  irrevocable,  the  new  constitution  should  forbid  in  future 
absolute  alienation  of  State  ownership  in  water  power;  and  allow  no 
alienation  of  State  property  without  just  compensation. 


STATE   OF    NEW   YORK  351 

tive  and  judicial,  of  superior  rank,  called  "oath  of  office/' 
Besides  promising  to  support  the  Federal  and  the  State  con- 
stitution and  faithfully  to  discharge  the  duties  of  his  office, 
each  offix:ial  was  obliged  to  swear  or  affirm  that  he  had 
neither  directly  nor  indirectly  paid  or  contributed  nor 
offered  or  promised  to  pay  or  contribute  any  money  or 
other  valuable  consideration  or  reward  for  the  giving  or 
withholding  of  a  vote  at  the  election  at  which  he  was  elected 
to  office,  and  had  not  made  any  promise  to  influence  the 
giving  or  withholding  of  any  such  vote.  The  convention 
added  a  clause  designed  to  prohibit  the  acceptance  by  any 
public  officer  of  any  free  pass^  free  transportation,  franking 
privilege  or  discrimination  in  passenger,  telegraph  or  tele- 
phone rates,  from  any  person  or  corporation  for  his  own 
use  or  in  conjunction  with  another.  Violation  of  the  prohi- 
bition was  made  a  misdemeanor  and  the  office  forfeitable 
at  the  suit  of  the  attorney-general.  The  offerer  of  the 
pass  or  privilege  could  not  escape  from  testifying  in  relation 
thereto  but  was  not  to  be  liable  to  civil  or  criminal  prosecu- 
tion therefor  if  he  testified  to  the  giving  of  the  same. 

In  order  to  prevent  a  recurrence  of  such  episodes  as 
had  delayed  until  1894  the  meeting  of  a  convention  de- 
manded by  popular  vote  in  1886,  the  convention  proposed 
substantial  changes  in  the  clause  of  Article  XIV  relating 
to  future  conventions.^    This  was  accomplished  by  the  for- 


•This  article  is  a  growth.  Section  i  first  appeared  in  the  constitu- 
tion of  1822.  A  constitutional  amendment  after  adoption  by  a  majority 
of  the  members  elected  to  each  house  was  "referred  to  the  legislature 
then  next  to  be  chosen."  If  approved  by  two-thirds  of  all  the  mem- 
bers elected  to  each  house  of  that  legislature  it  was  submitted  to  the 
people.  When  ratified  by  "a  majority  of  the  electors  qualified  to  vote 
for  members  of  the  legislature,  voting  thereon,"  it  became  part  of  the 
constitution. 

In  1846  the  section  was  altered  in  two  particulars:  (i)  an  amend- 
ment after  adoption  by  one  legislature  was  to  be  "referred  to  the  legis- 
lature to  be  chosen  at  the  next  general  election  of  senators";  (2)  a 
majority  vote  was  made  sufficient  in  the  second,  as  in  the  first,  legisla- 
ture. 


352  CONSTITUTIONAL   HISTORY 

mulation  of  a  self-executing  clause  providing  that  whenever 
the  question  whether  a  convention  should  be  called  to  revise 
and  amend  the  constitution  should  be  favorably  answered 
by  a  majority  of  the  electors  voting  thereon,  the  electors 
of  every  senate  district  of  the  State  as  then  organized 
should  elect  three  delegates  at  the  following  general  elec- 
tion for  members  of  assembly  and  the  electors  of  the  entire 
State  voting  at  the  same  election  should  elect  fifteen  dele- 
gates at  large,  and  that  the  delegates  should  convene  at 
the  capitol  on  the  first  Tuesday  of  April  next  ensuing  after 
their  election  and  continue  their  session  until  the  completion 
of  the  business  of  the  convention.  A  majority  of  its  mem- 
bers was  to  constitute  a  quorum.  The  assent  of  a  majority 
of  the  delegates  elected  at  the  convention  as  evinced  by  the 
yeas  and  nays  on  its  journal  was  made  a  condition  prece- 
dent to  the  submission  of  any  amendment  or  proposed  new 
constitution,  and  the  convention  was  empowered  to  decide 
in  what  manner  any  new  constitution  or  amendment  should 
be  submitted — such  submission,  however,  not  to  occur 
until  at  least  six  weeks  after  the  adjournment  of  the 
convention.  If  ratified  by  popular  vote  a  new  constitution, 
or  constitutional  amendments,  should  go  into  effect  on  the 
first  day  of  January  following  such  ratification.  In  the 
case  of  previous  conventions  all  these  matters  had  been 
contained  in  legislative  acts.  By  a  vote  of  93  to  46,  the 
convention  approved  the  proposed  constitution.  Like  all  of 
its  predecessors  from  1821   onwards,  it  drafted  a  report 


In  1846  section  2  was  added.  It  provided  that  at  the  general  elec- 
tion in  1866  and  in  each  twentieth  year  thereafter  and  at  such  times 
as  the  legislature  might  by  law  provide,  the  question  whether  a  con- 
vention should  be  summoned  should  be  decided  by  "the  electors  qual- 
ified to  vote  for  members  of  the  legislature."  If  a  majority  of  the 
qualified  electors  voting  upon  the  question  voted  affirmatively,  the 
legislature  at  its  next  session  was  to  provide  by  law  for  the  election 
of  delegates  to  the  convention. 

In  1894  section  2  was  radically  altered — as  shown  in  the  text.  The 
words  "electors  of  the  State"  were  substituted  in  both  sections,  for 
the  words  previously  used  to  define  electors  (see  page   211). 


STATE    OF    NEW   YORK  353 

to  the  people  briefly  summarizing  its  proposed  changes. 
The  report  declared  that  the  convention  had  not  altered  the 
frame- work  or  substance  of  the  constitution.  It  had  ab- 
stained from  venturing  upon  undue  experiments,  making 
such  modifications  only  as  experience  had  shown  to  be 
desirable.  Of  more  than  four  hundred  amendments  pro- 
posed and  considered  it  had  adopted  thirty-one.  The  con- 
vention, said  the  report,  had  renewed  the  recommendation 
of  the  convention  of  1867  providing  for  progress  in  agricul- 
ture by  requiring  general  laws  giving  the  right  of  drainage 
across  adjoining  lands;  it  had  separated  municipal  from 
State  and  national  elections  in  the  larger  cities  of  the  com- 
monwealth and  required  the  election  of  municipal  officers 
in  the  odd  numbered  years  and  of  State  officers  in  the  even 
numbered  years;  it  had  erected  various  safeguards  against 
abuses  in  legislative  procedure,  by  requiring  that  all  bills 
should  at  least  three  days  before  their  passage  be  printed 
in  their  final  form ;  prohibited  riders  on  appropriation  bills ; 
provided  for  notice  to  municipal  authorities  before  special 
acts  relating  to  the  larger  cities  should  become  effective; 
prohibited  the  issuance  of  passes  or  privileges  by  railroad, 
telegraph  and  telephone  companies  to  public  officers;  en- 
larged the  express  constitutional  powers  of  the  president  of 
the  senate,  and  changed  the  date  for  the  annual  meeting  of 
the  legislature  from  Tuesday  to  Wednesday  for  the  better 
convenience  of  its  members. 

'*We  have  also,"  continued  the  report,  "removed  the 
prohibition  against  the  sale  of  the  Onondaga  salt  springs 
which  are  a  source  of  annual  loss  to  the  State,"  and  *'the 
prohibition  against  the  sale  of  the  Hamburg  canal  in  Buf- 
falo, which  is  about  one  mile  in  length  and  which  serves 
no  purpose  except  to  breed  pestilence.  We  have  also  pro- 
vided that  the  public  lands  in  the  Forest  Preserve  shall 
never  be  sold  or  leased,  and  that  the  timber  thereon  shall 
never  be  cut.  *  *  *  We  have  extended  the  prohibition 
against  lotteries,  so  as  to  include  all  pool  selling,  book-mak- 


354  CONSTITUTIONAL   HISTORY 

ing,  and  other  forms  of  gambling.  *  *  *  We  have  abol- 
ished the  statutory  provision  limiting  the  right  of  recovery 
for  injuries  causing  death  to  five  thousand  dollars.  There 
is  little  or  no  attempt  to  defend  the  justness  of  this  limi- 
tation. *  *  *  We  have  sought  to  throw  grave  safeguards 
around  the  elective  franchise  by  prescribing  a  period  of 
ninety  instead  of  ten  days  of  citizenship  before  that  right 
can  be  exercised,  so  that  naturalization  may  be  taken  out 
of  the  hands  of  campaign  committees  and  removed  from 
the  period  immediately  before  election.  *  *  *  We  have 
modified  the  language  relating  to  elections,  so  that  if  a 
mechanical  device  for  recording  and  counting  votes  is  so 
perfected  as  to  be  superior  to  the  present  system,  the  legis- 
lature may  make  trial  of  it.  *  *  *  We  have  established 
in  the  constitution  the  well  tried  and  satisfactory  system  of 
registration  of  votes  *  *  *  and  have  provided  for  securing 
an  honest  and  fair  election  by  requiring  that  on  all  election 
boards,  election  of^cers  shall  equally  represent  the  two  prin- 
cipal parties  of  the  State." 

In  defence  of  the  proposed  apportionment  and  the 
changes  suggested  in  the  size  of  the  senate  and  assembly, 
the  report  urged  that  the  number  of  senators  had  first  been 
fixed  at  32  in  1801 ;  that  with  this  number  the  senate  dis- 
tricts in  1846  were  of  convenient  size;  that  only  one  county 
in  the  State  (New  York)  then  had  more  than  one  senator; 
that  the  citizen  population  in  that  year  was  2,450,778,  and 
in  1892,  5,790,865 ;  that  the  ratio  of  population  for  a  sen- 
ator had  consequently  grown  from  76,586  in  1846  to  180,- 
899  in  1892;  that  the  great  increase  of  population  in  cities 
since  1846,  carrying  with  it  additional  representation  in 
the  senate,  had  required  a  decrease  in  representation  of  the 
country  districts,  these  having  been  enlarged  and  their 
representation  accordingly  diminished;  that  the  purpose  of 
the  proposed  increase  was  to  restrict  the  country  districts 
to  the  position  which  they  had  in  1846  and  to  provide  for 
the  increased  representation  of  the  cities  by  the  increase  in 


STATE   OF   NEW   YORK  355 

number.  The  enlargement  of  the  assembly  was  ascribed  to 
the  necessity  of  maintaining  due  proportion  between  the 
membership  of  the  two  houses.  The  purpose  was  also  "to 
permit  in  the  apportionment  of  members  a  more  reasonable 
recognition  of  the  great  difference  in  population  in  the 
smaller  counties  of  the  State."  In  the  distribution  both  of 
senators  and  assemblymen  absolute  fairness  had  been  the 
aim,  and  the  "distribution  had  been  made  in  exact  accord- 
ance with  population,  so  far  as  the  maintenance  of  county 
lines  would  permit."  ^ 

The  new  constitution  was  submitted  to  the  people  at  the 
November  election  in  1894,  simultaneously  with  the  sub- 
mission to  the  voters  of  Greater  New  York  of  the  question 
whether  the  larger  city  should  be  formed.  This  was  also 
the  final  election  at  which  both  local  and  State  officers  were 
chosen.  The  convention  deliberated  whether  or  not  it  would 
be  desirable  to  present  its  amendments  to  the  people  for 
separate  vote  upon  each.  These  were  thirty-three  in  all,  and 
separate  submission  was  decided  to  be  impracticable.  There 
were  however  three  distinct  questions  presented  by  the  con- 
vention (i)  relating  to  the  apportionment  provisions  of  the 
new  constitution.  While  these  were  considered  by  some 
members  of  the  convention  to  be  distinctly  partisan   in 


•The  Committee  on  Apportionment,  in  its  report  to  the  conven- 
tion, said:  "When  the  senatorial  districts  were  but  eight  in  number, 
the  controlling  reason  for  the  change  made  by  the  Constitutional  Con- 
vention of  1846,  from  eight  senatorial  districts,  each  electing  four 
Senators,  to  thirty-two  senatorial  districts,  each  electing  one  Senator, 
was  that  the  Senators  from  the  eight  large  districts  could  have  no  close 
relation  with  all  the  people  of  their  districts.  Our  proposed  number 
of  fifty  Senators  will  substantially  restore  to  the  people  approximately 
the  same  representation  that  they  had  under  the  Constitution  of  1846, 
the  additional  eighteen  Senators  going  to  the  great  centers  of  popula- 
tion. The  opportunity  for  any  selfish  or  corrupt  interest  to  obtain  con- 
trol over  a  body  composed  of  fifty  members  will,  undoubtedly,  be  much 
less  than  to  obtain  control  over  a  body  of  thirty-two  members.  As  we 
propose,  the  most  popular  body,  the  Assembly,  is  increased  to  150, 
which  is  three  times  as  large  as  the  Senate,  thus  preserving  a  fair 
proportion  between  the  number  of  members  of  tb?  two  bodies," 


356  CONSTITUTIONAL   HISTORY 

character,  they  were  approved  by  popular  vote,  the  vote  in 
their  favor  being  404,335  to  350,625.  (2)  The  amend- 
ment advocating  improvement  of  the  canal  system  was 
adopted  by  a  vote  of  442,998  to  327,645.  (3)  The  other 
provisions  of  the  revised  constitution,  which  were  sub- 
mitted en  bloc,  were  approved  by  a  vote  of  410,697  to 
327,402. 

Several  amendments  are  open  to  the  criticism  of  being 
legislative  in  character — for  example,  those  relating  to 
pool-selling  and  book-making;  bi-partisan  local  election 
boards ;  contract  labor  in  prisons ;  sectarian  appropriations ; 
free  passes;  damages  for  injuries  causing  death.  Whether 
the  convention  section  is  in  reality  self -executing,  as  was 
the  intention  of  its  framers,  is  doubtful.  The  present  con- 
stitution (sec.  2,  Art.  XIV)  provides  elaborate  machinery 
therefor.  It  perhaps  wisely  declares  that  the  convention 
shall  be  judge  of  the  election,  returns  and  qualifications 
of  its  members.  The  wisdom  of  requiring  the  submission 
of  a  proposed  constitution,  or  constitutional  amendment,  to 
popular  vote  at  least  six  weeks  later  than  the  adjournment 
of  a  convention,  is  debatable.  The  use  of  the  word  "elec- 
tion" to  describe  the  submission  is  a  misnomer.  In  many 
particulars  the  constitution  has  the  attributes  of  a  statute, 
and  is  not  an  organic  outline  of  government. 

Since  1894,  changes  in  the  constitution,  while  numerous, 
with  few  exceptions  have  not  been  vital.  Several  have 
grown  out  of  the  need  of  expanding  the  judicial  force  and 
equipping  the  court  of  appeals  with  power  more  easily  to 
dispose  of  its  enlarging  calendar.  The  purpose  of  some  is 
to  relieve  city  governments  from  too  narrow  limitations  in 
the  creation  of  debts.  Others  have  been  inserted  at  the  be- 
hest of  the  labor  interests  and  still  others  affect  the  canal 
policy  of  the  State.  Briefly,  aside  from  those  increasing 
the  ability  of  the  State  to  incur  debt  and  authorizing  work- 
men's compensation  laws,  these  amendments  are  as  follows : 

In  1899,  section  7  of  Article  VI  w^s  amended  to  au- 


STATE   OF   NEW   YORK  357 

thorize  the  governor,  upon  the  certificate  of  a  majority  of 
the  judges  of  the  court  of  appeals  that  the  court,  by  reason 
of  the  accumulation  of  causes  before  it,  was  unable  to  hear 
and  dispose  of  the  same  with  reasonable  speed,  to  designate 
not  more  than  four  justices  of  the  Supreme  Court  to  serve 
as  associate  judges  of  the  court  of  appeals  until  the  num- 
ber of  causes  undisposed  of  upon  the  calendar  should  be 
reduced  to  200,  when  the  judges  so  designated  should  auto- 
matically return  to  the  Supreme  Court.  Section  i  of  this 
article  was  amended  in  1905  to  increase  the  Supreme  Court 
membership  in  the  various  judicial  districts,  and  permit 
the  creation  of  a  ninth  district  out  of  the  second  district. 

The  judiciary  article  was  further  amended  in  1899  by 
the  inclusion  in  section  2  of  Article  VI  of  power  to  the 
governor  to  make  temporary  designations  to  any  Appellate 
Division,  whenever  its  presiding  judge  should  certify  as  to 
the  necessity  for  the  service  of  an  additional  justice  or 
justices  for  the  speedier  disposition  of  the  business  of  the 
court.  The  same  section  was  again  amended  in  1905  to 
confer  upon  Appellate  Division  justices  outside  of  the  de- 
partment in  which  they  were  performing  the  duties  of  ap- 
pellate justices,  and  while  not  engaged  in  such  duties,  the 
power  to  hold  terms  of  the  Supreme  Court  and  exercise  the 
functions  of  justices  of  that  court  in  any  county  or  judicial 
district  in  any  other  department  of  the  State.  The  vote 
for  this  change  was  288,227,  against  it  125,649;  majority 
162,578. 

In  1899  section  10  of  Article  VIII  was  amended  to 
provide  that  whenever  the  boundaries  of  any  city  are  co- 
terminous with  those  of  a  county  or  when  any  city  shall 
include  within  its  boundaries  more  than  one  county,  the 
power  of  any  county  wholly  included  within  such  city  to 
become  indebted  should  cease,  but  the  debt  of  the  county 
theretofore  existing  should  not  for  the  purposes  of  the  sec- 
tion be  reckoned  as  part  of  the  city  debt. 

In  the  same  year  section  26  of  Article  III  was  amended 


358  CONSTITUTIONAL  HISTORY 

to  exempt  the  counties  included  in  Greater  New  York  from 
the  provisions  of  the  constitution  requiring  a  board  of 
supervisors  in  each  county.  Instead  a  provision  was  in- 
serted that  in  a  city  including  an  entire  county  or  two  or 
more  entire  counties,  the  powers  and  duties  of  a  board  of 
supervisors  might  devolve  upon  the  board  of  aldermen  or 
other  legislative  body  of  the  city. 

In  1905  section  10  of  Article  VIII  respecting  city  in- 
debtedness was  amended  so  as  to  permit  the  city  of  New 
York  to  exempt  its  water  debt  from  consideration  in  the 
computation  of  the  ten  per  cent,  indebtedness  which  may 
not  be  exceeded.  The  water  debt  of  the  city  being  pro- 
tected by  special  sinking  funds,  there  was  no  valid  reason 
why  it  should  interfere  with  other  needed  improvements, 
as  it  did,  while  its  amount  entered  into  the  ten  per  cent, 
limitation.  The  amendment  was  approved  by  a  vote  of 
363,117  to  129,424,  or  a  majority  of  233,693. 

In  1905  a  new  clause  was  added  to  section  i  of  Article 
XII,  which  is  as  follows :  "And  the  legislature  may  regu- 
late and  fix  the  wages  and  salaries,  the  hours  of  work  or 
labor,  and  make  provision  for  the  protection,  welfare  and 
safety  of  persons  employed  by  the  State,  or  by  any  county, 
city,  town  or  village,  or  other  civil  division  of  the  State, 
or  by  any  contractor  or  sub-contractor  performing  work, 
labor  or  services  for  the  State,  or  for  any  county,  city,  town, 
village  or  other  civil  division  thereof."  This  was  approved 
by  a  vote  of  338,570  to  113,606;  majority  204,964. 

Several  amendments  were  adopted  by  the  people  in 
1909,  one  affecting  the  compensation  of  judges  of  the 
Supreme  Court,  another  permitting  the  legislature  to  alter 
the  rate  of  interest  upon  any  State  debt  constitutionally 
authorized.  Other  amendments  affect  the  powers  of 
boards  of  supervisors  and  judges,  the  drainage  of  lands, 
and  timber  and  trees  on  the  forest  preserve.  One  amend- 
ment enlarges  the  debt  creating  power  of  any  city  by 
eliminating  from  the  computation  of  its  debt  so  much  as 


STATE   OF   NEW   YORK  359 

might  be  incurred  for  public  improvements  owned  by  the 
city  and  run  by  it  at  a  profit. 

Between  1909  and  1913  no  amendments  were  made, 
but  four  were  ratified  at  the  fall  election  of  the  later  year. 
By  the  first,  compensation  for  taking  private  property  for 
public  use  may  now  be  ascertained  not  only  by  a  jury  or  by 
commissioners,  as  formerly,  but  by  the  Supreme  Court  with 
or  without  a  jury,  but  not  with  a  referee.  What  is  known 
as  the  "excess  condemnation"  principle  has  also  been 
adopted.  The  legislature  may  under  certain  restrictions 
authorize  cities  to  take  more  land  and  property  than  is 
immediately  necessary  for  public  improvements.  The  sec- 
ond change  is  the  addition  of  the  workmen's  compensation 
amendment.  The  third  permits  the  election  of  additional 
county  judges  in  the  county  of  Kings.  The  fourth  per- 
mits the  use  of  three  per  cent,  of  the  forest  preserve  for 
construction  and  maintenance  of  such  reservoirs  as  may  be 
needed  for  municipal  water  supply,  canals  and  the  regula- 
tion of  stream  flow. 

Six  constitutional  conventions  have  been  held  in  this 
State.  With  the  exception  of  that  of  1801,  whose  chief 
task  was  the  determination  of  the  true  construction  of  the 
article  of  the  constitution  of  1777  creating  the  council  of 
appointment,  each  convention  has  reported  a  complete  con- 
stitution. Of  the  four  constitutions  submitted  to  the  people, 
three  have  been  accepted  in  their  entirety,  the  constitution 
drafted  by  the  convention  of  1867  being  the  only  one  that 
failed  of  complete  adoption.  Down  to  the  constitution  of 
1847  there  was  no  provision  of  any  kind  in  the  organic  law 
for  the  call  of  a  convention.  The  method  of  amendment 
by  legislative  resolution  followed  by  popular  ratification 
(incorporated  in  the  constitution  in  1822)  has  been  actively 
employed  ever  since  1826,  when  the  first  and  second  amend- 
ments to  the  constitution  of  1822  entered  into  the  fabric  of 
the  fundamental  law.  The  amendment  reducing  duties  on 
salt  manufacture  and  permitting  the  qualified  voters  of 


36o  CONSTITUTIONAL   HISTORY 

New  York  City  to  elect  the  mayor  became  part  of  the  con- 
stitution in  1833.  The  amendment  allowing  the  qualified 
voters  of  other  cities  than  New  York  City  to  elect  their 
chief  magistrate  was  ratified  in  1839.  Save  for  alterations 
in  the  canal  and  the  judiciary  article,  and  the  provision 
authorizing  soldiers  in  actual  service  to  vote,  the  constitu- 
tion of  1846  stood  unchanged  until  1874.  Some  of  the 
amendments  adopted  by  the  convention  of  1867  and  after- 
ward approved  by  the  commission  of  1872  were  with  the 
permission  of  two  successive  legislatures  submitted  to  the 
people  at  the  general  election  of  1874.  The  amendment 
abolishing  canal  tolls  followed  in  1882. 

Since  the  adoption  of  the  constitution  of  1894  many 
amendments  have  been  made  upon  legislative  initiative. 
Important  provisions  have  through  this  method  found 
their  way  into  the  constitution.  Its  advantage  in  earlier 
days  was  that  one  amendment  was  presented  at  a  time,  or 
at  most  never  more  than  two  arose  for  consideration  at 
the  same  election;  and  each  succeeded  or  fell  upon  its  own 
merits  or  demerits.  The  practice  of  submitting  several 
amendments  at  the  same  election  may  be  said  to  have  started 
in  1874.  While  this  course  was  perfectly  proper  in  that 
year,  because  the  work  presented  for  public  approval  con- 
sisted of  amendments  originally  suggested  by  the  constitu- 
tional convention  of  1867  ^^^  favorably  reported  by  the 
able  commission  of  1872,  amendments  since  submitted  have 
often  come  up  for  popular  consideration  without  adequate 
knowledge  on  the  part  of  voters  of  the  reasons  for  or 
against  them.  This  has  several  times  been  condemned  by 
the  highest  officials  of  the  State.  "The  practice,"  said 
Governor  Higgins,  in  1906,  "is  not  to  be  commended  of 
submitting  numerous,  disconnected  and  complicated  consti- 
tutional amendments  to  popular  vote,  as  in  case  of  four  of 
the  seven  voted  on  (in  1905)  two  years  after  their  final 
approval  by  the  legislature,  without  the  aid  of  an  address 
to  the  people  explaining  their  purpose  and  object.     The 


STATE   OF   NEW   YORK  361 

provision  that  a  majority  of  the  electors  voting  thereon 
shall  be  sufficient  to  ratify  constitutional  amendments,  is 
necessary  and  salutary/^  but  greater  care  should  be  taken  to 
call  forth  a  large  and  intelligent  vote."  The  same  thought 
was  tersely  phrased  by  Governor  Hughes  when  he  urged 
that  means  be  devised  to  familiarize  the  voters  with  pro- 
posed constitutional  amendments,  so  that  more  intelligent 
action  upon  them  might  be  secured. 

Until  recent  years  amendments  originating  in  the  legis- 
lature frequently  met  great  public  indifference,  and  the 
opportunity  for  burying  them  in  legislative  committees 
often  occurred.  The  danger  at  present  seems  rather  to  be 
that  resort  may  too  often  be  had  to  this  method  of  amend- 
ment and  the  organic  law  changed  hastily  without  adequate 
reflection  or  discussion.  It  is  usually  easier  to  summon 
support  for  a  measure,  however  unwise  the  measure  may 
be,  than  to  obtain  adequate  vote  to  defeat  it.  In  the  history 
of  the  State  since  1822  rarely  has  an  amendment  which  had 
passed  the  two  requisite  legislatures  been  defeated  at  the 
polls.  A  striking  instance  occurred  in  the  fall  of  1896  when 
it  was  proposed  to  amend  section  7  of  Article  VII  so  as  to 
permit  encroachments  upon  the  forest  preserve.  The  pro- 
posed change  was  defeated  by  an  adverse  vote  of  710,505 
to  312,486. 

It  has  never  been  deemed  praticable  by  any  of  the  con- 
stitutional conventions  to  submit  articles  to  the  people  sec- 
tion by  section,  although  the  law  under  which  each  conven- 
tion since  that  of  1777  has  met  has  contained  provisions 
for  submission  of  its  work  in  whole  or  in  separate  parts 
at  the  convention's  option.  The  convention  of  1777  never 
submitted  its  work  to  the  electorate  at  all.  The  convention 
of  1 82 1,  although  authorized  by  the  act  of  1820  to  present 
its  amendments  together  or  in  distinct  propositions  as  it 


"On  the  contrary  it  should  no  longer  be  permitted  that  a  pitiful 
minority  of  the  voters  of  the  State  shall  be  able  to  call  a  convention, 
ratify  a  new  constitution  or  any  amendment  to  the  existing  one. 


362  CONSTITUTIONAL   HISTORY 

might  deem  expedient,  submitted  them  as  a  whole,  and  as 
a  whole  they  were  approved.  The  act  of  1845  ^^ve  the 
convention  of  1846  a  like  option,  yet  its  work  was  sub- 
mitted and  ratified  as  an  entirety.  The  act  under  which 
delegates  to  the  convention  of  1867  were  chosen  provided 
that  any  amendments  or  the  amended  constitution  should  be 
voted  upon  as  a  whole  or  in  separate  propositions  as  the 
convention  should  deem  practicable,  and  by  resolution  de- 
clare. The  convention  reported  that  its  amendments  were 
interdependent;  that,  in  its  judgment,  they  made  a  complete 
and  harmonious  constitution,  and  that  it  was  not  judicious 
to  take  any  part  from  the  other  to  be  passed  upon  by  the 
people  separately,  excepting  only  those  separately  submitted. 
In  accordance  with  this  report,  the  act  of  1869  directed 
that  the  constitution  proposed  by  the  convention  should  be 
submitted  as  a  whole,  with  the  exception  of  the  provisions 
relating  to  the  qualifications  of  colored  voters,  to  assess- 
ment and  taxation,  and  with  the  exception  of  the  amended 
judiciary  article,  which  article  alone  met  with  popular  ap- 
proval. The  convention  of  1894,  having  prepared  thirty- 
three  separate  amendments  to  the  former  constitution,  de- 
cided that  it  would  be  unwise  to  ask  the  people  to  vote  upon 
these  singly.  The  provisions  which  it  submitted  separately 
have  heretofore  been  noted. 

Changes  in  the  constitution  should  not  too  lightly  be 
permitted,  and  while  the  constitutionality  of  the  employ- 
ment of  commissions  has  been  doubted  by  some  constitu- 
tional students,  notably  Judge  Jameson,  the  results  in 
practice  have  been  admirable,  for  there  has  been  concentra- 
tion of  more  intelligent,  disciplined,  and  expert  thought 
upon  the  proposed  amendments  than  might  otherwise  have 
been  secured. 


STATE   OF   NEW   YORK  363 


CHAPTER   XIX 

workmen's     compensation THE     WAINWRIGHT     LAW 

THE  "iVES"  CASE — THE  WORKMEN'S  COMPENSATION 
AMENDMENT — RECENT  IMPORTANT  CHANGE  IN  THE 
FEDERAL  LAW THE  SULZER  IMPEACHMENT IM- 
PEACHMENT TRIAL  AND  CONSTITUTIONAL  QUESTIONS 
RAISED  THEREAT THE  JUDGMENT  OF  REMOVAL — QUES- 
TIONS FOR  THE  COMING  CONSTITUTIONAL  CONVENTION 
ACT  OF  THE  LEGISLATURE  RECOMMENDING  THE  CALL- 
ING     OF      A      CONVENTION THE      VOTE TAXPAYER'S 

ACTION  TO  ENJOIN  ASSEMBLING  OF  CONVENTION THE 

DECISION  OF  THE  COURT  OF  APPEALS — ELECTION  OF 
DELEGATES. 

The  doctrine  of  workmen's  compensation  found  slow 
acceptance  in  the  United  States.  As  was  said  by  President 
Roosevelt  in  a  special  message  to  Congress,  December  8, 
1908,  probably  in  no  other  respect  has  legislation  in  this 
country  kept  so  far  behind  that  in  the  rest  of  the  civilized 
world,  as  in  the  matter  of  liability  and  compensation  for 
accidents  in  industry.  In  1904  Congress  had  enacted  a 
compensation  law,  which  was  declared  unconstitutional  be- 
cause it  included  commerce  over  which  Congress  had  no 
control.  A  law  more  strictly  limited  to  interstate  commerce 
was  passed  by  Congress  in  1908  and  has  been  upheld  by  the 
Federal  courts.  Underlying  the  opposition  to  the  earlier 
statute  was  the  quite  general  conviction  of  employers  that 
the  compensation  principle  was  in  conflict  with  economic 
laws  and  interfered  with  freedom  of  labor.  The  counter 
feeling  had  been  growing  for  some  years  that  courts  were 


364  CONSTITUTIONAL   HISTORY 

becoming  agencies  to  enunciate  established  and  unprogres- 
sive  economic  theories — a  sentiment  undoubtedly  strength- 
ened by  the  decision  of  the  Supreme  Court  upon  the  earlier 
compensation  statute  and  in  the  celebrated  bake-shop  case 
which  had  gone  to  that  tribunal  from  the  New  York  court 
of  appeals.  Mr.  Justice  Holmes  from  the  bench  declared 
that  the  fourteenth  amendment  had  not  enacted  Mr.  Her- 
bert Spencer's  Social  Statics,  and  President  Roosevelt  from 
the  White  House,  and  later  from  the  hustings,  criticised 
the  use  of  judicial  power  to  resist  amelioration  in  labor 
conditions. 

In  1910,  the  State  of  New  York,  after  a  well-consid- 
ered report  from  a  special  committee  of  the  legislature, 
enacted  a  Workmen's  Compensation  Law,  usually  styled  the 
Wainwright  law.  The  committee  had  not  been  oblivious 
of  possible  criticisms  of  the  measure,  for  prior  to  its  enact- 
ment the  sentiment  of  the  legal  profession  was  divided  as 
to  its  constitutionality.  In  the  case  of  Ives  v.  The  South 
Buffalo  Railway  Company  (201  N.  Y.,  271),  the  court  of 
appeals  unanimously  held  the  act  unconstitutional  as  in 
violation  of  the  fourteenth  amendment  to  the  Constitution 
of  the  United  States.  The  court  admitted  the  power  of  the 
legislature  to  abrogate  the  contributory  negligence  rule 
and  the  fellow-servant  principle;  it  doubted  whether  as- 
sumption of  risk  could  be  abolished;  it  denied  that  any 
employer  could  be  held  liable  for  an  accident,  where  in  no 
sense  was  he  at  fault. 

This  decision  provoked  bitter  controversy.  It  was  vio- 
lently criticised  and  vigorously  defended.  Strictly  inter- 
preted, it  seemed  to  forbid  all  compensation  legislation  until 
the  Constitution  of  the  United  States,  as  well  as  that  of 
the  State,  had  been  amended.  Dissatisfaction  with  the 
power  immemorially  exercised  by  the  courts  to  pronounce 
legislation  void  assumed  widespread  proportions  and 
aroused  discussion  of  the  basis  of  the  power  all  over  the 
country.    For  a  time  the  decision  seemed  to  add  impetus  to 


STATE   OF   NEW   YORK  365 

the  movement  for  judicial  recall,  or  for  recall  of  judicial 
decisions  by  popular  vote.  While  these  subjects  are  still 
in  the  polemic  stage,  the  authority  of  the  courts  to  declare 
unconstitutional  legislation  invalid  has  been  completely  vin- 
dicated. A  workmen's  compensation  amendment  to  the 
constitution  has  been  framed  and  passed.^  This  amend- 
ment, after  approval  by  the  legislature  of  1912  and  by  the 
legislature  of  1913,  was  ratified  by  the  voters  of  the  State 
at  the  general  election  of  1913.  By  Chapter  816,  Laws  of 
1913,  the  legislature,  at  the  extraordinary  session  of  that 

^The  workmen's  compensation  amendment  (section  19,  Art.  I) 
is  as  follows :  "Nothing  contained  in  this  constitution  shall  be  construed 
to  limit  the  power  of  the  legislature  to  enact  laws  for  the  protection 
of  the  lives,  health  or  safety  of  employees;  or  for  the  payment,  either 
by  employers,  or  by  employers  and  employees  or  otherwise,  either 
directly  or  through  a  state  or  other  system  of  insurance  or  otherwise, 
of  compensation  for  injuries  to  employees  or  for  death  of  employees 
resulting  from  such  injuries  without  regard  to  fault  as  a  cause  thereof, 
except  where  the  injury  is  occasioned  by  the  wilful  intention  of  the 
injured  employee  to  bring  about  the  injury  or  death  of  himself  or  of 
another,  or  where  the  injury  results  solely  from  the  intoxication  of 
the  injured  employee  while  on  duty;  or  for  the  adjustment,  determina- 
tion and  settlement,  with  or  without  trial  by  jury,  of  issues  which  may 
arise  under  such  legislation;  or  to  provide  that  the  right  of  such  com- 
pensation and  the  remedy  therefor  shall  be  exclusive  of  all  other  rights 
and  remedies  for  injuries  to  employees  or  for  death  resulting  from 
such  injuries;  or  to  provide  that  the  amount  of  such  compensation  for 
death  shall  not  exceed  a  fixed  or  determinable  sum;  provided  that  all 
moneys  paid  by  an  employer  to  his  employees  or  their  legal  represen- 
tatives, by  reason  of  the  enactment  of  any  of  the  laws  herein  author- 
ized, shall  be  held  to  be  a  proper  charge  in  the  cost  of  operating  the 
business  of  the  employer." 

The  amendment  was  made  the  subject  of  discussion  at  the  Academy 
of  Political  Science,  New  York,  in  November,  1914,  The  phrase  au- 
thorizing the  legislature  to  pass  laws  for  "the  protection  of  the  lives, 
health,  or  safety  of  employees"  was  considered  irrelevant  matter.  It 
had  been  inserted  with  the  idea  of  encouraging  a  more  liberal  attitude 
on  the  part  of  the  courts  in  dealing  with  labor  legislation  (Proceedings 
of  the  Academy  of  Political  Science,  vol.  V,  No.  2,  pp.  101-2,  119). 
Regarding  the  other  improper  matter  in  the  amendment,  including  pro- 
visions authorizing  public  utility  companies  to  charge  the  cost  of  com- 
pensation to  operating  expenses  in  computing  the  reasonableness  of 
their  rates,  see  page  102.  Two  separate  drafts  of  an  amendment  were 
§i;bmitted  in  the  course  of  the  discussion  (see  p.  127), 


366  CONSTITUTIONAL   HISTORY 

year,  passed  a  Workmen's  Compensation  Law  which  was 
re-enacted  and  became  law  March  i6,  191 4  (Chapter  41, 
Laws  of  1 9 14).  Thus,  inside  of  four  years  after  the 
passage  of  the  Wainwright  law,  not  only  was  the  consti- 
tution amended  to  render  such  a  law  possible,  but  also  a 
new  law  was  enacted  and  put  in  force.  The  discussion 
ensuing  upon  the  Ives  decision  and  the  adoption  of  the 
amendment  furnish  convincing  as  well  as  beneficent  proof 
of  the  adequacy  of  existing  methods  of  changing  the  fun- 
damental law.  The  decision  at  first  aroused  a  feeling  that 
the  power  of  the  courts  needed  curtailment.  Wiser  coun- 
sels supervened,  legal  talent  throughout  the  State  interested 
itself  in  drafting  an  amendment  and  although  the  amend- 
ment finally  ratified  seems  unnecessarily  comprehensive, 
the  history  of  the  struggle  for  it  justifies  confidence  in 
democratic  institutions.  Laws  and  constitutions  are  power- 
less against  public  sentiment.  In  order,  however,  that  a 
transitory  feeling  may  not  be  mistaken  for  it,  the  constitu- 
tion wisely  interposes  checks  upon  hasty  legislation — thus 
giving  the  "second,  sober  thought"  time  for  expression. 

The  decision  in  the  Ives  case,  followed  by  a  decision 
of  the  Supreme  Court  of  the  State  of  Washington  uphold- 
ing a  similar  law,  emphatically  called  attention  to  the  desira- 
bility of  legislation  permitting  an  appeal  to  the  Supreme 
Court  of  the  United  States  from  State  decisions  condemn- 
ing State  statutes  as  repugnant  to  the  Federal  Constitution. 
Such  an  amendment  to  the  judiciary  code  of  the  United 
States  has  since  the  Ives  decision  been  repeatedly  urged, 
and  was  obtained  by  act  of  Congress  approved  by  the 
President,  December  23,  191 4.  If  the  benefits  of  that  deci- 
sion be  offset  against  its  seeming  injustices  it  must  be 
acknowledged  that  they  are  numerous.  Without  it  the 
Federal  statute  might  have  long  remained  unaltered.  By 
this  change  the  Supreme  Court  of  the  United  States  be- 
comes the  final  tribunal  to  d^terrnin^  whether  any  statute, 


STATE   OF   NEW   YORK  367 

State  or  Federal,  conflicts  with  the  due  process  clause  of 
the  Constitution  of  the  United  States. 

No  impeachment  trial  has  ever  surpassed  in  interest 
the  trial  of  Warren  Hastings,  Governor-General  of  India. 
In  February,  1786,  Burke  was  directed  by  the  House  of 
Commons  to  present  articles  of  impeachment  before  the 
bar  of  the  Lords.  In  February,  1788,  these  articles  were 
presented  and  Hastings  was  called  upon  to  plead.  Not  until 
the  spring  of  1795  was  the  memorable  decision  pronounced 
and  Hastings  discharged.  This  celebrated  trial,  imperish- 
ably  associated  with  the  names  of  Burke,  Fox  and  Sheridan, 
terminated  in  failure.  Macaulay,  whose  brilliant  pages 
have  made  the  proceedings  and  even  the  hall  in  which 
they  occurred  almost  as  familiar  as  every-day  incidents, 
declared  that  impeachment,  though  a  "fine  ceremony  and 
doubtless  useful  in  the  seventeenth  century,"  was  not  a  pro- 
ceeding "from  which  much  good  can  now  be  expected." 
The  wisdom  of  this  opinion  expressed  in  1841,  thirty-six 
years  after  the  impeachment  of  Lord  Melville,  the  last  im- 
peachment in  England,  was  confirmed  when  by  a  close  vote 
the  senate  of  the  United  States  exonerated  Andrew  John- 
son. It  was  Burke's  compassion  for  suffering,  his  indigna- 
tion against  injustice,  his  hatred  of  arbitrary  power  that 
gave  life  to  the  prosecution  of  Hastings.  Although  the 
impeachment  failed,  it  taught,  says  Lord  Morley,  "the  great 
lesson  that  Asiatics  have  rights,  and  that  Europeans  have 
obligations."  Whether  President  Johnson  had  violated  the 
Tenure  of  Office  Act  in  removing  Stanton  and  appoint- 
ing General  Thomas  secretary  of  war  in  his  stead,  was  the 
occasion  but  not  the  cause  for  his  impeachment.  The  trial 
had  its  origin  in  the  underlying  conflict  between  a  Congress 
and  a  president  whose  policies  were  diametrically  opposed. 

The  Sulzer  impeachment  is  invested  with  none  of  the 
glamor  that  surrounds  those  justly  famous  trials.  It  had 
no  great  inspiration.     Its  origin  was  probably  vindictive. 


368  CONSTITUTIONAL   HISTORY 

Sulzer  was  removed  from  the  governorship,  but  his  vic- 
torious opponents  failed  to  impose  any  further  punishment 
than  dismissal  from  office.  The  vote  for  him  in  his  subse- 
quent canvass  for  the  governorship,  while  not  a  vindica- 
tion, proves  the  existence  of  a  strong  and,  perhaps,  justi- 
fiable public  belief  that  notwithstanding  his  serious  faults 
he  was  marked  for  punishment  because  of  the  fear  of  his 
adversaries  lest  scandals  might  be  unearthed  which  would 
result  in  public  prosecutions. 

The  Sulzer  episode  is  worthy  of  notice  because  of  the 
light  which  it  sheds  upon  the  uncertain  meaning  of  clauses 
of  the  constitution.  It  brought  into  relief  the  contrast 
between  the  Federal  and  the  State  constitution  as  to  the 
meaning  and  use  of  the  word  "impeachment."  It  awak- 
ened public  attention  to  the  fact  that  the  organic  law  of 
the  State  failed  to  define  an  impeachable  offense.  It  pre- 
sented some  few  senators  in  the  inconsistent  aspect  of  advo- 
cates of  the  prosecution  and  at  the  same  time  judges.  It 
showed  that  the  president  of  the  senate,  a  possible  bene- 
ficiary in  salary  and  in  higher  office  by  Sulzer's  conviction, 
could  nevertheless  not  be  debarred  from  a  seat  in  the 
court. 

The  articles  of  impeachment  were  adopted  at  a  session 
of  the  assembly  held  pursuant  to  a  proclamation  of  the 
governor  convening  the  two  houses  in  extraordinary  session 
for  special  purposes.  The  session  began  June  i6,  191 3. 
The  articles  were  presented  to  the  senate  on  August  13. 
Instant  discussion  arose  whether  impeachment  could  take 
place  at  an  extraordinary  session,  and  whether  the  exhibi- 
tion of  the  articles  of  impeachment  required  the  governor's 
immediate  removal  from  office.  Sulzer  having  attempted 
to  exercise  the  governor's  power  of  pardon,  and  the  warden 
of  the  penitentiary  refusing  to  acknowledge  his  act,  these 
questions  arose  for  decision  in  a  habeas  corpus  proceeding 
in  the  supreme  court.  The  court,  through  Mr.  Justice  Has- 
l^rouck,  held  that  the  assembly  as   an  independent  body 


STATE    OF   NEW   YORK  369 

exercising  its  judicial  power  of  impeachment,  might  con- 
vene itself  for  that  purpose  and  that  it  could  prefer  articles 
of  impeachment  at  an  extraordinary  session  of  the  legisla- 
ture despite  the  language  of  the  constitution  forbidding 
the  legislature  at  such  a  session  to  act  upon  any  subject 
not  recommended  for  its  consideration  by  the  governor  in 
summoning  it.^  The  justice  held  also  that  in  New  York 
State,  "impeachment"  was  synonymous  with  the  filing  of 
articles  of  impeachment,  and  worked  instant  deposition  of 
the  impeached  official,  pending  trial  upon  the  articles. 

The  impeachment  court  assembled  in  the  senate  cham- 
ber at  the  capitol  on  September  18,  19 13.  The  chief  judge 
of  the  court  of  appeals  was  made  its  presiding  officer.  At 
the  threshold  lay  the  question  whether  the  justices  of  the 
supreme  court  designated  to  sit  as  members  of  the  court 
of  appeals  in  its  ordinary  judicial  functions,  could  sit  as 
members  of  the  impeachment  tribunal.  This  was  ruled 
affirmatively  by  the  presiding  officer. 

The  first  attack  made  by  the  respondent  was  upon  the 
constitution  of  the  court.  The  organic  law  ever  since  1847 
had  declared  that  the  court  should  be  composed  of  ''the 
president  of  the  senate,  the  senators  or  a  major  part  of 
them,  and  the  judges  of  the  court  of  appeals  or  the  major 
part  of  them" ;  the  Constitution  of  the  United  States  pre- 
scribes that  "the  senate  shall  have  sole  power  to  try  all 
impeachments,  and  that  when  the  president  or  the  vice- 


'In  a  letter  to  the  New  York  Sun,  August  15,  1913,  under  the 
title  "Lawyer,"  Mr.  Francis  Woodbridge  of  the  New  York  bar  made 
a  striking  distinction  between  the  assembly  as  a  legislative  body  and  as 
an  inquisitorial  or  impeaching  body.  As  an  inquisitor  or  species  of 
grand  jury  it  was  in  no  way  limited  by  the  constitution,  save  that  it 
must  act  by  a  vote  of  a  majority  of  all  the  members  elected.  Its  power 
to  meet  at  any  time  as  an  impeaching  body  was  nowhere  restricted. 
A  derelict  governor  could  not,  therefore,  by  refusing  to  convene  the 
legislature,  prevent  his  own  impeachment.  The  view  is  substantially 
identical  with  that  afterwards  pronounced  by  Mr.  Justice  Hasbrouck 
in  the  case  cited  in  the  text — People  ex  rel.  Robin  v.  Hayes,  82  Misc., 
165;  affirmed  in  the  Appellate  Division  and  in  the  Court  of  Appeals. 


370  CONSTITUTIONAL   HISTORY 

president  is  under  impeachment,  the  chief  justice  shall 
preside."  The  distinction  of  language  in  the  two  cases  is 
marked.  Sulzer's  counsel  objected  to  the  presence  in  the 
court  of  three  senators  who  had  been  active  in  promoting 
the  impeachment  and  who,  in  a  report  to  the  legislature, 
had,  as  the  challenge  ran,  "adjudged"  the  governor  guilty 
upon  the  charges  contained  in  the  articles  of  impeachment. 
Objection  was  aimed  at  the  president  of  the  senate  also, 
who  upon  Sulzer's  conviction  would  become  lieutenant- 
governor.  He  was  personally  interested  in  the  success  of 
the  impeachment  and  would  benefit  by  a  decision  against 
the  governor.  In  answer  to  these  objections  the  precedent 
of  the  Johnson  case  was  invoked,  where  the  right  of  Senator 
Wade  of  Ohio  to  sit  was  challenged.  Wade  was  not  only 
one  of  the  President's  most  violent  opponents,  but  in  case 
of  his  removal  would  have  become  his  successor  in  the 
presidential  chair.  In  support  of  Wade's  claim  to  a  seat,  it 
was  argued  that  there  was  no  power  to  exclude  him.  The 
constitution  declared  that  the  court  should  consist  of  the 
senate  with  two  senators  from  each  State.  In  reply  it  was 
well  said  by  Senator  Reverdy  Johnson  of  Maryland,  that 
if  Senator  Wade  sat  the  judgment  would  be  absolutely  void 
upon  general  principles. 

In  the  Sulzer  case  the  rejoinder  of  Sulzer's  counsel, 
through  ex-Judge  Herrick,  was  that  under  the  State  consti- 
tution it  was  not  the  senate,  but  senators  or  a  major  part 
of  them,  who  were  members  of  the  court.  Hence  there 
was  power  to  exclude.  No  one,  he  asserted,  should  serve 
upon  the  court  who  had  a  clear  interest  in  the  result  of  the 
trial.  By  consent  of  the  court  itself  the  presiding  officer 
was  made  its  mouth-piece  to  express  its  decision.  His  opin- 
ion was  learned  and  acute — perhaps  sound  also  from  the 
standpoint  of  precedent.  It  is,  said  he,  a  question  of  power, 
and  the  question  is,  have  some  members  of  this  court  power 
to  exclude  other  members  of  the  court,  except  for  reasons 
defined  by  law,  either  in  the  constitution  or  in  the  statutes. 


STATE    OF    NEW    YORK  371 

No  one  member  of  the  tribunal  could  exclude  another.  By 
this  decision,  which  met  no  disapproval,  a  court  was  con- 
stituted of  such  a  nature  as  Blackstone  denied  that  the 
omnipotence  of  parliament  could  create.  Its  power,  he 
declared,  was  limited  in  this,  that  it  could  not  make  a  man 
a  judge  in  his  own  case.  It  shocks  the  moral  sense  that 
senators  who  might  have  prejudged  the  case  and  a  senator 
whom  self-interest  might  tempt  to  vote  against  the  gov- 
ernor, could  not  constitutionally  be  deprived  of  seats  in  the 
court.  ^ 

The  next  objection  related  to  the  jurisdiction  of  the 
court.  In  substance  it  was  that  the  assembly  was  power- 
less to  frame  impeachment  articles  at  the  extraordinary 
session  for  the  reason  that  neither  in  the  governor's  procla- 
mation convening  the  legislature,  nor  in  any  message,  com- 
munication, or  otherwise,  was  the  subject  of  impeachment, 
or  the  consideration  of  impeachment  charges,  mentioned. 
In  support  of  the  demurrer  to  jurisdiction  Mr.  Marshall, 
one  of  respondent's  counsel,  argued,  notwithstanding  the 
decision  of  Mr.  Justice  Hasbrouck  to  the  contrary,  that  an 
assembly  convened  in  extraordinary  session  had  no  power 
to  impeach.  The  impeachment  managers  replied  that  when 
the  assembly  impeached  the  respondent  and  adopted  articles 
of  impeachment,  it  was  lawfully  convened  for  that  pur- 
pose. Ex-Judge  Parker,  for  the  managers,  maintained  that 
the  assembly,  as  an  impeaching  body,  could  convoke  itself. 
The  power  to  impeach  was  not  legislative  in  character.    The 


'The  challenged  senators  were  at  their  own  request  excused 
from  voting  upon  the  question  of  their  right  to  sit.  Apparently  the 
court  itself  could  not  have  forbidden  them  had  they  insisted  upon 
voting,  for  it  could  no  more  decide  that  they  should  not  vote  upon 
one  question  than  upon  another.  The  reasoning  of  the  chief  judge, 
although  sustained  by  precedents,  fails  of  convincingness.  The  maxim 
that  the  accuser  shall  not  be  judge  is  of  universal  application.  The 
presence  of  an  accuser  upon  the  bench  discredits  the  court.  There  was 
no  decision  upon  this  point  in  the  Johnson  case  because  Senator  Hen- 
dricks, who  had  first  raised  the  question,  withdrew  his  objection,  al- 
though unconvinced  that  it  was  not  sound. 


Z72  CONSTITUTIONAL    HISTORY 

constitution  prescribed  how  the  senate  and  assembly  should 
be  summoned  for  legislative  purposes,  but  was  silent  as  to 
how  the  members  of  assembly  might  come  together  as  an 
impeaching  body.  In  this  respect  they  were  under  no 
restrictions  save  that  a  majority  of  the  elected  members 
must  concur  in  the  impeachment.  There  might,  he  said, 
come  a  time  when  the  necessities  of  the  State  would  demand 
that  the  assembly  should  convene  itself. 

The  decision  of  the  court  of  impeachment  through  its 
president,  while  overruling  the  plea  of  lack  of  jurisdiction, 
denied  that  the  assembly  had  an  inherent  right  to  meet 
at  any  time  and  present  articles  of  impeachment.  It  was 
the  assembly  as  such,  he  held,  that  was  given  the  right  to 
impeach.  It  had  no  power  to  convoke  itself.  If  the  speaker 
or  any  other  member  might  convene  it,  it  would  have  no 
power  to  protect  itself;  it  might  be  convened  at  one  place 
or  another ;  it  would  be  a  scene  of  anarchy.  He  held,  how- 
ever, that  the  assembly  had  been  regularly  convened  and 
could  lawfully  impeach.  While  the  constitution  declared 
that  no  subject  should  be  acted  upon  at  an  extraordinary 
session  save  such  as  the  governor  might  recommend  for 
consideration,  that  provision  related  to  the  legislative  power 
of  the  houses,  not  to  the  impeaching  power  of  the  assembly. 

The  view  of  ex- Judge  Parker,  which  was  that  of  Mr. 
Justice  Hasbrouck  also,  seems  more  convincing.  It  places 
no  limitations  upon  the  impeaching  power  not  expressly 
contained  in  the  constitution  itself.  The  dangers  con- 
jured by  the  chief  judge  appear  to  be  groundless.  Each 
house  determines  its  own  rules  and  is  sole  judge  of  the 
election,  returns  and  qualifications  of  its  own  members. 
It  may  choose  its  own  officers.  These  powers  are  ample 
to  enable  the  assembly  to  meet  at  any  time  as  an  impeach- 
ing body. 

The  preliminary  objections  having  been  overruled,  it 
was  then  objected  that  articles  of  impeachment  i,  2,  6  re- 
lated to  acts  alleged  to  have  been  done  by  the  respondent 


STATE   OF   NEW   YORK  373 

before  his  accession  to  the  governorship,  and  that  he  could 
be  impeached  only  for  misconduct  in  office.  Upon  both 
sides  the  arguments  were  able  and  disclose  great  research. 
Following  the  practice  in  civil  trials,  the  chief  judge  pro- 
posed to  overrule  the  objection  in  the  first  instance  and 
hear  the  proofs,  reserving  decision  until  the  close  of  the 
evidence.  His  suggestion  was  approved  by  the  court,  testi- 
mony was  offered  by  the  managers  and  the  defense,  and 
the  case  exhaustively  and  eloquently  summed  up.  The 
decision  of  the  court,  39  to  18,  was  that  Sulzer  was  guilty 
upon  articles  i  and  2 — relating  to  misconduct  prior  to  his 
accession  to  office.  By  a  vote  of  43  to  14  he  was  held  guilty 
upon  the  fourth  article,  charging  mal  and  corrupt  conduct 
in  office  in  practicing  deceit  and  fraud  and  using  threats 
and  menaces  to  prevent  witnesses  from  attending  before 
the  legislative  committee  appointed  to  investigate  the  sub- 
ject of  contributions  by  candidates  at  the  last  prior  elec- 
tion. Upon  charges  3,  5,  6,  7,  he  was  held  not  guilty;  and 
by  a  vote  of  43  to  12  he  was  held  guilty  of  the  charge  (No. 
8)  that  he  had  corruptly  used  his  authority  or  influence  as 
governor  to  affect  the  current  prices  on  the  Stock  Exchange 
of  securities  owned  by  him. 

As  to  the  governor's  liability  to  impeachment  for  ante- 
cedent misconduct  there  was  the  sharpest  difference  of 
view.  Five  judges  of  the  court  of  appeals — Collins,  Cudde- 
back,  Hiscock,  Hogan  and  Miller — coinciding  with  a  ma- 
jority of  the  senators,  held  that  prior  misconduct  consti- 
tuted an  impeachable  offense;  while  the  minority  (Bartlett, 
Chase,  Cullen  and  Werner)  held  that  it  did  not.  Judge 
Bartlett's  opinion  admirably  summarizes  the  views  of  the 
minority.  Prior  to  1846  an  officer  could  be  impeached  only 
for  misconduct  in  office.  In  that  year  the  constitution  was 
changed  and  made  more  general  by  the  omission  of  grounds 
of  impeachment.  What  was  the  purpose  of  this  alteration 
in  the  fundamental  law?  Was  it  tantamount  to  a  declara- 
tion that  the  common  law  of  England  regarding  impeach- 


374  CONSTITUTIONAL   HISTORY 

ments  should  be  the  law  of  the  State,  or  was  it  a  recogni- 
tion of  the  provisions  then  in  the  Revised  Statutes  limiting 
impeachable  acts  to  misconduct  in  office?  That  he  held 
to  be  the  correct  view.  There  was  no  instance  on  record  in 
this  country  where  an  officer  had  been  removed  from  his 
office  by  impeachment  for  acts  done  when  not  in  office. 
Nor  could  he  believe  that  it  was  intended  by  the  framers 
of  the  constitution  of  1846  "to  leave  the  definition  of  im- 
peachable offenses  wholly  to  the  arbitrary  discretion  of  the 
assembly  or  of  the  court  for  the  trial  of  impeachments — 
in  other  words,  that  the  assembly  possesses  an  unlimited 
power  of  impeachment  for  any  cause  it  sees  fit,  while  the 
court  of  impeachment  may  likewise  convict  and  remove 
for  any  such  cause."  For  support  of  this  view  we  must  go 
back  more  than  five  hundred  years  in  the  history  of  English 
jurisprudence.  It  was  inconceivable  that  our  constitution- 
makers  intended  to  restore  in  this  State  a  theory  of  im- 
peachment abolished  by  statute  in  England  five  hundred 
years  ago. 

Judge  Chase,  concurring  with  Judge  Bartlett,  said: 
'Tf  the  people  hereafter  want  to  give  to  the  assembly 
power  to  impeach  an  officer  of  the  State  for  any  immoral 
or  criminal  act  committed  before  his  term  of  office  has 
commenced,  they  can  do  it,  as  they  can  in  all  cases  when 
changes  are  desired  in  our  organic  law,  by  amending  its 
provisions  in  the  manner  therein  provided." 

At  somewhat  more  length  Chief  Judge  Cullen  enun- 
ciated similar  views.  "In  this  State,"  said  he,  "the  trial 
of  an  impeachment  is  a  judicial  proceeding,  the  determina- 
tion of  which  must  accord  with  the  law."  Acts  of  a  public 
officer  committed  before  he  became  an  officer  of  the  State 
were  not  subject  to  impeachment.  "Never  before  the  pres- 
ent case  has  it  been  attempted  to  impeach  a  public  officer 
for  acts  committed  while  he  was  not  an  officer  of  the 
State."  In  January,  1849,  ^^ss  than  two  years  after  the 
adoption  of  a  new  constitution,  the  legislature  recommended 


STATE   OF   NEW   YORK  375 

the  Code  of  Criminal  Procedure,  which  was  not  enacted, 
however,  until  1881.  The  Code  limited  impeachment  to 
cases  of  ^'wilful  and  corrupt  misconduct  in  office."  This 
was  law  when  the  constitutional  convention  of  1894  met 
and  the  convention  attempted  no  change.  Its  theory  evi- 
dently was  that  "the  existing  regulation  had  properly  con- 
strued and  given  effect  to  the  constitutional  intention,  for 
constitutions  are  assumed  to  be  made  with  recognition  of 
existing  statute  law." 

Mr.  Justice  Miller  cogently  presented  the  obverse  view. 
The  change  in  the  constitution  in  1846  was  ''deliberate,  not 
accidental."  ^  It  was  intended  to  "confer  the  power  to 
impeach  upon  the  assembly  and  the  power  to  try  upon  the 
court  for  the  trial  of  impeachments,  without  restriction 
or  limitation." 

The  question  then  arose  whether  Sulzer  should  "be  dis- 
qualified to  hold  any  office  of  honor  or  trust  or  profit  under 
this  State."  Upon  this  there  were  fifty-six  noes,  the  presi- 
dent having  been  excused  from  voting.  On  October  17, 
191 3,  judgment  was  rendered  removing  Sulzer  from  the 
office  of  governor. 

It  will  be  the  business  of  the  forthcoming  convention 
to  decide  whether  the  ambiguities  of  the  constitution  shall 
be  continued.  Is  the  power  of  impeachment,  if  it  is  to 
remain  in  the  assembly,  to  be  capable  of  exercise  by  it  at 
any  time?  Shall  any  judge  or  senator,  however  clear  his 
disqualifications  to  the  moral  sense  of  mankind,  be  per- 
mitted to  sit  in  judgment,  and  must  the  plea  prevail  that 
his  associates  have  no  power  to  remove  him  from  the  court  ? 
Should  a  public  officer  be  impeached  for  acts  committed 
when  he  was  not  an  officer  of  the  State?  Does  it  rest  with 
the  court  for  the  trial  of  an  impeachment  to  say  what 
are  impeachable  acts? 


*No  proof  of  this  can  be  found  in  the  convention's  records.  (See 
"Inherent  Limitations  upon  Impeachment,"  by  the  author,  Yale  Law 
Journal,  Nov.,  1913.) 


376  CONSTITUTIONAL   HISTORY 

Such  a  court  would  possess  a  discretionary  power  of 
removal  of  all  officers  including  elective  officers.  It  would 
be  absolute  judge  of  the  extent  of  its  own  jurisdiction. 
As  was  well  said  by  one  of  the  counsel  in  the  Barnard  im- 
peachment trial,  it  would  be  'left  entirely  to  the  spontaneous 
guidance  of  its  convictions  at  the  time  it  is  called  upon  to 
act."  A  court  invested  with  plenary  authority  to  determine 
whether  the  officer  impeached  is  "fit  to  continue  in  office" 
— for  such  would  be  its  power — could  not  only  nullify  the 
results  of  an  election,  but  remove  at  will.  It  will  be  for  the 
coming  convention  to  say  whether  limitations  upon  im- 
peachment do  not  in  reality  inhere  in  the  framework  of 
government.  The  constitution  has  not  created  a  body  with 
imperial  powers. 

The  constitution  provides  (Art.  XIV,  sec.  2)  that  at 
the  general  election  to  be  held  in  the  year  191 6,  and  every 
twentieth  year  thereafter,  and  also  at  such  times  as  the 
legislature  may  by  law  provide,  the  question  "  'shall  there 
be  a  convention  to  revise  the  Constitution  and  amend  the 
same?'  shall  be  decided  by  the  electors  of  the  State."  Al- 
though the  twenty  year  period  had  not  expired  the  legisla- 
ture in  December,  191 3,  invoking  the  provision  which  al- 
lowed it  to  submit  the  question  at  such  other  times  as  it 
might  prescribe,  passed  a  statute  (Chapter  819,  Laws  of 
191 3)  providing  for  a  special  election  throughout  the  State 
on  the  first  Tuesday  in  April  in  the  year  191 4  at  which 
the  question  whether  there  should  be  called  a  convention 
should  be  submitted  to  the  electors  of  the  State  for  decision. 
The  statute  provided  that  every  person  might  vote  upon 
the  question  who  at  that  time  would  be  qualified  to  vote  for 
members  of  the  legislature.  The  question  was  to  be  sub- 
mitted in  the  manner  provided  by  law  for  the  submission  of 
constitutional  amendments.  If  as  determined  by  the  re- 
turns of  county  boards  of  canvassers  to  the  State  board  of 
canvassers  and  by  its  canvass  of  such  returns  a  majority 


STATE   OF   NEW   YORK  377 

of  the  electors  voting  upon  the  question  were  found  to 
have  voted  affirmatively,  the  convention  should  be  deemed 
duly  called  and  delegates  thereto  should  be  elected,  in  the 
manner  provided  in  the  constitution. 

The  total  vote  in  favor  of  calling  the  convention  was 
found  by  the  returns  to  be  153,322,  the  vote  against  call- 
ing it  151,969 — a  slight  plurality  of  1,353.  The  total  vote 
in  191 2  for  all  candidates  for  governor  was  1,611,672. 
The  vote  at  the  special  election  emphasizes  the  need  of  some 
constitutional  provision  forbidding  the  calling  of  a  conven- 
tion or  the  ratification  of  an  amendment  by  petty  minorities. 
The  contrast  between  the  relatively  small  vote  in  April, 
19 1 4,  and  the  percentage  of  voters  voting  for  or  against 
a  convention  in  preceding  years  was  marked. 

In  the  summer  of  19 14  a  taxpayer  brought  suit  to  re- 
strain the  various  election  officials  of  the  State  from  taking 
any  of  the  steps  preliminary  to  the  nomination  or  election 
of  delegates  to  a  constitutional  convention.  The  complaint 
charged  the  commission  of  gross  frauds  in  certain  election 
districts  in  the  twelfth  and  in  the  fourteenth  assembly  dis- 
tricts in  the  city  of  New  York,  which,  as  the  special  term 
justice  declared  in  an  opinion  upholding  the  right  of  the 
taxpayer  to  sue,  ''were  so  widespread  as  utterly  to  destroy 
the  probative  value  of  the  returns  made  by  the  election 
officials  of  these  districts,''  and  these  returns,  he  ruled, 
should  be  disregarded  from  the  statement  of  the  vote 
throughout  the  State  at  large.  But  at  the  argument  there 
had  been  submitted  indisputable  evidence  of  a  mathematical 
error  in  the  summation  of  the  votes  from  a  district  in 
Kings  County.  One  thousand  votes  in  favor  of  the  conven- 
tion were  thus  added.  This  destroyed  the  prima  facie  case 
for  an  injunction  which  arose  because  of  the  invalid  returns 
in  the  twelfth  and  fourteenth  districts,  and  on  this  account 
the  court  denied  the  motion  for  an  injunction.  The  com- 
plaint had  alleged  also  that  the  act  under  which  the  special 
election  was  held  was  invalid  because  no  provision  had 


37§  CONStiTUtlOiSTAL   HiSfOftV 

been  made  for  a  ten  day  prior  registration  of  voters  there- 
at, as  required  by  the  constitution  in  the  case  of  each  and 
every  election.  The  special  term  justice  held  that  there 
was  a  sufficient  compliance  with  the  constitution,  although 
the  registration  had  not  been  completed  fully  two  hundred 
and  forty  hours  before  the  opening  of  the  polls  on  April  7. 
At  the  appellate  division,  where  the  absence  of  registra- 
tion was  made  the  main  cause  of  attack,  several  opinions 
were  delivered,  the  court  by  a  vote  of  four  to  one  uphold- 
ing the  decision  below.  Apparently  impressed  with  the 
fact  that  fully  two  hundred  and  forty  hours  had  not  inter- 
vened between  the  closing  of  the  registration  and  the 
opening  of  the  polls,  two  of  the  justices  held  that  what  took 
place  at  the  so-called  special  election  was  not  an  election, 
for  no  officers  were  voted  for,  but  that  it  was  a  submission, 
as  provided  for  in  the  constitution  itself.  And  they  held 
that  a  submission  was  not  an  election  within  the  meaning 
of  Article  II  of  the  constitution  requiring  registration  of 
voters  before  election.  The  court  of  appeals  ^  by  unanimous 
vote  dismissed  the  action  on  the  ground  that  there  was  no 
inherent  power  in  a  court  of  equity  to  set  aside  a  statute  as 
unconstitutional  except  in  a  controversy  between  litigants 
where  it  is  sought  to  enforce  rights,  or  to  enjoin,  redress 
or  punish  wrongs  affecting  individual  life,  liberty  or  prop- 
erty. "The  rights  to  be  affected,"  said  the  court,  "must  be 
personal  as  distinguished  from  the  rights  in  common  with 
the  great  body  of  the  people.  Jurisdiction  has  never  been 
directly  conferred  upon  the  courts  to  supervise  the  acts 
of  other  departments  of  government.  The  jurisdiction  to 
declare  an  act  of  the  legislature  unconstitutional  arises  be- 
cause it  is  the  province  and  duty  of  the  judicial  department 
of  government  to  declare  the  law  in  the  determination  of 
the  individual  rights  of  the  parties."  The  assumption  of 
jurisdiction  in  any  other  case  would,  the  court  continued, 


Schieffelin  v.  Komfort,  212  N.  Y.,  520,  530,  531,  532. 


STATE   OF   NEW   YORK  379 

be  an  interference  by  one  department  of  government  with 
another  department  of  government  when  each  is  equally 
independent  within  the  powers  conferred  upon  it  by  the  con- 
stitution itself.  To  assume  jurisdiction  to  control  the  exer- 
cise of  political  powers,  or  to  protect  the  purely  political 
rights  of  individuals,  would  be  to  invade  the  domain  of 
other  departments  of  government  or  of  the  courts  of  com- 
mon law.  And  the  court  concluded  that  *'the  clear  weight 
of  authority  in  this  State  is  against  the  alleged  power  and 
authority  of  the  courts  to  pass  upon  the  constitutionality 
of  a  statute  except  in  an  action  or  proceeding  in  behalf  of 
a  person  whose  special,  peculiar  personal  rights  are  affected 
thereby." 

By  this  decision,  which  wisely  recognizes  the  just 
boundaries  of  the  judicial  power,  the  holding  of  the  con- 
vention became  a  certainty.  At  the  general  election  of 
1 914  the  voters  of  the  State  chose  fifteen  delegates  at  large 
and  one  hundred  and  fifty-three  district  delegates.  All  the 
delegates  at  large  belong  to  the  Republican  party.  With 
the  exception  of  three  from  Buffalo,  all  the  up-State  dele- 
gates are  Republicans.  Only  four  of  the  delegates  had  sat 
in  the  convention  of  1894 — these  four  were  Senator  Root, 
Mr.  Louis  Marshall,  Mr.  Delancey  Nicoll,  all  of  New  York 
City,  and  Mr.  Charles  S.  Mereness  of  Lowville. 

In  his  opening  address  in  the  convention  of  1894  Mr. 
Choate  reminded  the  delegates  that  they  had  met  not  as 
partisans  but  as  citizens  and  servants  of  the  people,  who 
would  not  be  actuated  by  any  partisan  spirit  whatever. 
The  delegates  to  the  convention  of  191 5  will  assemble  with 
general  public  confidence  that,  forgetful  of  party,  they  will 
cooperate  to  revise  the  constitution  in  the  interests  of  all 
the  people  of  the  State.  There  has  been  little,  if  any,  abuse 
of  partisan  opportunity  in  any  constitutional  convention 
assembled  in  its  past.  The  questions  which  engage  atten- 
tion transcend  ordinary  politics  and  are  usually  approached 
in  something  of  the  spirit  of  statesmanship. 


38o  CONSTITUTIONAL   HISTORY 


CHAPTER   XX 

BRIEF SITM MARY  OF  CONSTITUTIONAL  CHANGES  SINCE  ORGAN- 
IZATION OF  STATE — CHECKS  UPON  LEGISLATIVE  ACTION 
IMPLY  NO  DISTRUST  OF  DEMOCRACY INITIATIVE,  REFER- 
ENDUM, recall;  extent  of  their  employment  in 

NEW    YORK NO    REAL    DANGER    OF    ENCROACHMENT    BY 

THE    NATION    UPON    THE    PROVINCE    OF    THE    STATE 

GREATNESS  OF  THE  STATE  DEPENDS  UPON  ITS  OWN   PEO- 
PLE  UNIVERSAL  SUFFRAGE; ITS  VALUE  IN  THE  HISTORY 

OF  STATE  AND  NATION ^ASSURED  FUTURE  OF  DEMOCRACY 

CONCLUSION. 

Almost  a  complete  constitution  was  established  during 
colonial  days.  With  a  clause  to  indicate  change  of  alle- 
giance, and  a  few  other  modifications,  the  charter  of  the 
colony  might,  as  actually  happened  in  the  case  of  Connecti- 
cut, have  become  the  first  constitution  of  the  State.  A  gen- 
erally aristocratic  government  by  a  few  wealthy  families 
has  since  been  transformed  into  a  representative  democracy 
with  manhood  suffrage.  The  three  coordinate  branches  of 
sovereignty  have  gradually  gained  in  sharpness  of  outline 
notwithstanding  that  at  times  one  or  another  has  seemed  to 
be  dominating.^    To  distrust  of  the  executive  has  succeeded 


^In  this  respect  the  history  of  the  state  is  similar  to  that  of  the 
nation.  Webster  denounced  what  he  styled  executive  usurpation  on 
Jackson's  part;  in  the  reconstruction  period  Congress  seemed  to  absorb 
an  undue  fraction  of  governmental  power;  today  the  complaint  with 
some  is  that  the  executive  assumes  too  great  authority;  with  others 
that  the  courts  overshadow  the  legislature  and  have  really  become  an 
additional  legislative  body  with  a  veto  upon  much  legislation. 


STATE   OF   NEW   YORK  381 

almost  undemocratic  reliance  upon  it.  To  an  era  when 
the  policy  of  internal  improvements  had  unbroken  sway  suc- 
ceeded a  time  of  jealousy  of  State  enterprise  and  strict  re- 
solve to  limit  State  indebtedness.  The  State  in  recent  years 
has  embarked  upon  gigantic  expenditures  involving  it  in  a 
debt  that  may  easily  reach  to  a  quarter  of  a  billion  dollars. 
The  debt  has  compelled  reimposition  of  the  direct  tax.  In 
less  than  a  score  of  years  the  annual  expenses  of  State  gov- 
ernment have  been  trebled.  Can  it  be  said  that  in  this  in- 
terval life,  liberty  or  property  has  been  rendered  any  more 
safe  or  that  any  glorious  governmental  gains  have  been 
made  of  which  the  people  of  twenty  years  ago  had  no  con- 
ception? The  additional  expenses  cannot  be  laid  exclu- 
sively to  account  of  canals  and  highways,  for  the  annual 
interest  and  amortization  charges  explain  only  a  part  of  the 
added  cost  of  government.  Taking  these  into  considera- 
tion it  has  been  doubled.^  Government  by  commissions  has 
become  fashionable,  and  State  surveillance  over  all  forms 
of  activity  has  been  greatly  increased  within  a  few  years. 
Some  of  this  is  inevitable  unless  the  artificial  creatures  of 
the  State  are  to  constitute  a  despotism  superior  to  the  State 
and  its  people.  There  is,  however,  much  yet  to  be  learned 
regarding  the  differentiation  of  governmental  functions. 
There  never  was  a  time  when  the  nature  of  government, 
the  proper  distribution  of  its  powers,  and  the  adjustment 
of  checks  and  balances  needed  better  to  be  understood. 

In  essentials  the  constitution  has  undergone  slight 
change  save  in  widening  the  electoral  franchise,  curbing 
legislative  power  and  providing  for  city  government.  The 
legislature  remains  bicameral,  and  the  courts  exercise  their 

'If  the  system  by  which  taxes  are  raised  is  wise,  the  expense 
of  collection  is  proportionately  excessive  to  the  amounts  raised.  Last 
year  the  State  collected  from  its  automobile  tax  $1,500,000.  The  cost 
of  collection  was  more  than  one-fourth.  The  total  expenses  of  govern- 
ment last  year  exceeded  $50,000,000.  The  cost  of  the  State  asylum 
system  is  one-seventh  of  the  whole  amount.  The  number  of  State 
commissions  is  legion. 


382  CONSTITUTIONAL    HISTORY 

old  functions,  except  that  law  and  equity  are  administered 
in  one  set  of  tribunals.  The  term  of  the  assembly  is  still 
one  year,  and  of  the  senate  two  years;  the  governor's  ten- 
ure, originally  fixed  at  three  years,  was,  because  of  the 
extension  of  his  powers,  reduced  to  two  in  1822;  it  was 
raised  to  three  in  1875,  and  reduced  to  two  again  in  1895. 
The  popular  election  idea  reached  its  climax  a  half  century 
ago ;  today  the  feeling  is  that  frequent  elections  and  numer- 
ous officeholders  are  likely  to  prejudice  rather  than  advance 
representative  government.  For  almost  seventy  years 
judges  of  the  higher  courts  have  not  been  appointed,  nor 
do  they  hold  during  good  behavior.  From  an  elective  sys- 
tem with  short  terms  of  eight  years  for  the  superior 
judges — the  outcome  of  the  popular  fervor  of  1846 — the  os- 
cillation has  been  towards  life  tenure,  though  the  movement 
stopped  with  a  term  of  fourteen  years. 

Although  the  appointment  of  judges  is  commonly 
deemed  the  wisest  method  of  selecting  them  and  has  stood 
the  test  of  time  and  experience,  it  is  doubtful  whether  it 
can  be  re-established  in  this  State.  The  people  are  reluctant 
to  surrender  power  once  conferred.  As  Chancellor  Kent 
said  in  the  constitutional  convention  of  1821,  there  is  no 
retrograde  march  in  the  rear  of  democracy.  Benjamin 
Disraeli  brilliantly  phrased  the  same  thought  when  he  de- 
clared that  democracy  is  like  the  grave ;  it  takes,  but  never 
gives.  Yet  there  are  times  when  the  people  perform  acts 
of  renunciation.  They  need  only  to  be  educated  to  under- 
stand when  concession  should  be  made.  The  lengthening 
of  short  terms  is  a  surrender  of  popular  power.  So  is  the 
shortening  of  the  ballot.  In  1849  New  York  City  elected 
all  its  department  heads,  but  had  the  wisdom  later  to  recede 
from  this  extreme  use  of  the  vote.  There  are  many  evi- 
dences that  the  people  of  this  State  realize  that  judges  have 
been  appointed  all  along,  but  by  bosses  and  influences  ad- 
verse to  the  people.  They  have  begun  to  perceive  that  in 
their  own  interests  the  power  of  appointment  should  be 


STATE   OF   NEW   YORK  383 

given  to  some  recognized  political  authority — the  governor, 
for  example — whom  they  may  hold  responsible  for  his 
acts.  The  power  of  removal  should  never  degenerate  into 
a  recall,  but  it  should  be  a  real  and  effective  means  for 
getting  rid  of  incompetent  as  well  as  venal  judges.  Every 
judge  ought  to  discharge  his  functions  in  wholesome  dread 
of  impeachment  or  removal.  The  instinct  of  the  American 
people  is  sound;  it  does  not  admit  that  any  public  servant 
should  be  above  criticism.  High  character,  great  attain- 
ments, and  exalted  standards  of  life  ought  to  be  insisted 
upon  in  the  judiciary.  If  the  bar  were  a  more  courageous 
body,  these  great  ends  would  readily  be  attained. 

The  organic  law  has  reached  the  limit  of  mobility  con- 
sistent with  wisdom.  The  danger  is  lest  the  process  of 
amendment  be  too  readily  invocable.  In  some  States  this  is 
partially  overcome  by  provisions  requiring  a  two-thirds  or 
three-fourths  vote  in  two  legislatures  before  the  submission 
of  amendments  to  the  people.  The  necessity  for  adequate 
popular  vote  as  a  basis  of  organic  changes  is  coming  more 
and  more  to  be  recognized.  It  is  a  mistake  to  permit  a 
minority  of  all  the  voters,  although  it  be  a  majority  of  those 
voting  upon  a  proposal,  to  possess  power  to  alter  the  funda- 
mental law. 

It  is  sometimes  argued  that  the  checks  upon  legislation, 
the  adoption  of  which  has  practically  coincided  with  the 
advent  of  manhood  suffrage,  imply  distrust  of  popular  gov- 
ernment. Such  was  the  assertion  of  Governor  John  Young 
in  his  message  to  the  legislature  in  1847  ^^  criticising  the 
constitution  of  that  year.  It  placed  "novel  restraints  upon 
the  legislature  and  denied  the  people  the  right  to  vote  a 
single  dollar  unless  by  the  statute  which  proposed  the  ex- 
penditure a  tax  was  imposed  to  pay  principal  and  interest." 
Was  there  anything  in  the  history  of  the  State,  he  in- 
quired, which  "should  beget  this  want  of  reliance  in  the 
wisdom  and  stability  of  the  people"? 

Far  from  signifying  the  failure  of  democracy,   such 


384  CONSTITUTIONAL   HISTORY 

checks  indicate  a  developing  sense  of  the  need  of  limiting 
ordinary  legislative  activity.  It  is  not  wise  to  confide  to  an 
agent  more  power  than  is  needed  for  the  office  and  the 
time.  Assuming,  for  example,  as  an  abstract  proposition, 
the  competence  of  any  legislature  to  grant  perpetual  fran- 
chises, the  wisdom  of  conferring  this  measureless  power 
upon  men  elected  for  one  or  two  years,  thus  enabling  them 
for  any  motive  to  subject  the  people  for  all  time  to  some 
particular  interest,  may  well  be  doubted.  There  have  al- 
ways been  checks  in  constitutions.  A  second  house  with  a 
constituency  different  from  the  more  popular  chamber  is  a 
check  upon  legislation;  the  requirement  of  a  majority  or 
two-thirds  vote  to  pass  a  bill  over  the  governor's  veto  con- 
stitutes another  check  upon  it.  Experience  teaches  the  wis- 
dom of  creating  agents  with  special  and  definite,  rather  than 
general  and  indefinite,  powers.  Unable  to  manage  their 
public  business  directly,  the  people  prefer  to  delegate  as 
little  authority  as  possible,  and  to  put  checks  upon  one  class 
of  agents  by  the  creation  of  another,  as  the  best  means  of 
eliminating  abuses  or  reducing  them  to  a  minimum.  Thus 
the  ability  of  local  government  to  incur  debt  has  very  prop- 
erly been  curbed  and  appropriation  of  public  funds  for 
private  enterprises  wisely  interdicted.  The  constitution 
restricts  the  executive  and  the  courts,  yet  no  one  has  sug- 
gested that  this  implies  suspicion  of  democracy;  why,  there- 
fore, should  limitations  upon  the  legislative  branch  be 
deemed  proof  of  its  failure?  Far  from  denoting  failure 
of  popular  government,  all  such  limitations  mark  a  higher 
political  evolution. 

The  initiative,  the  referendum  and  recall  have  become 
very  popular  in  some  western  States.  The  initiative  fur- 
nishes voters  opportunity  to  compel  action  by  a  legislative 
body  upon  a  proposed  law  of  their  own  preparation.  The 
referendum  allows  them  to  decide  whether  a  law  shall  go 
into  effect.  The  recall  enables  them  to  end  the  term  of  an 
elected  public  officer  before  its  statutory  limit  in  case  his 


STATE    OF   NEW   YORK  385 

official  conduct  does  not  square  with  his  pre-election  prom- 
ises or  otherwise  fails  to  meet  their  approval.  It  may  be 
well  to  consider  to  what  extent  the  principle  underlying 
these  is  employed  in  this  State,  and  whether  a  broader  use 
would  be  wise. 

In  New  York  State  the  referendum  is  employed  when- 
ever the  people  vote  whether  a  convention  to  amend  or  re- 
vise the  constitution  shall  be  summoned  or  register  their 
verdict  upon  its  work.  They  may  revise  the  constitution 
by  electing  two  altogether  independent  legislatures  to  carry 
out  their  wishes  and  by  ratifying  its  proposed  amendments. 
Frequently  they  have  been  asked  to  approve  at  the  polls 
a  certain  policy  before  it  should  go  into  effect.  To  submit 
legislation  often  to  popular  vote  would  conflict  with  the 
basic  idea  of  representative  government.  In  theory  public 
officers  are  chosen  to  enforce  a  definite  legislative  or  ad- 
ministrative policy.  The  success  of  representative  democ- 
racy rests  with  the  Demos  itself.  It  is  the  fault  of  voters 
if  they  do  not  elect  good  representatives.  They  should  en- 
dure the  evils  of  mis-government,  until  they  learn  to  do  their 
duty  at  the  polls.  There  must  be  the  expert  in  the  political 
as  in  every  other  field.  The  business  of  making  laws  is  the 
business  of  experts  trained  by  long  and  laborious  study. 
Voters  should  fix  policies,  but  their  experts  must  be  trusted 
to  embody  these  in  appropriate  legislation. 

Every  tenure  shorter  than  that  of  good  behavior  involves 
a  species  of  recall.  Short  terms  have  been  found  to  operate 
prejudicially  to  the  public  interest,  and  they  have  gradually 
been  lengthened,  thus  proving  that  one  form  of  the  recall 
may  be  unwise.  What  citizenship  needs  is  the  faculty  of 
making  rational  choice  of  its  agents  at  the  outset.  The  de- 
vice of  the  recall  is  the  shift  of  inefficiency  that  hopes  to 
repair  its  initial  errors  by  reserving  the  power  to  end  the 
service  of  the  agent  at  will.  This  would  involve  no  educa- 
tion in  the  art  of  making  better  selections;  there  would  be 
danger  that  even  poorer  agents  would  be  chosen  because  of 


386  CONSTITUTIONAL   HISTORY 

the  facility  with  which  they  could  be  deposed.  The  best 
officials  might  easily  be  made  victims  of  the  system.  Use 
of  the  recall  could  work  positive  mischief  of  the  worst  kind 
in  the  removal  of  judges. 

A  form  of  initiative  prevails  under  the  existing'  govern- 
ment, but  as  a  rule  we  legislate  too  easily  under  the  pressure 
of  popular  excitement.  With  wide  enjoyment  of  the  suf- 
frage the  people  may  initiate  whatever  legislation  they  will. 
A  higher  grade  of  legislators  might  be  had  if  terms  were 
longer;  and  while  no  one  would  revive  the  old  council  of 
revision,  there  might  well  be  a  council  to  bring  bills  into  har- 
mony with  the  whole  content  of  legislation.  Adoption  of 
something  analogous  to  the  English  private  bill  system 
would  tend  to  obviate  many  evils. 

Fear  is  often  expressed  that  the  general  government  by 
undue  centralization  is  usurping  State  functions.  The  ex- 
tent of  this  danger,  if  in  fact  there  be  any,  may  easily  be 
determined.  Upon  six  different  occasions  during  the  course 
of  one  hundred  and  eighteen  years,  this  State  through  dele- 
gates assembled  in  convention  has  made  and  revised  its 
constitution.  In  changing  its  organic  law  it  has  acted  inde- 
pendently of  sister  States,  and  of  the  general  government. 
No  provision  of  its  constitution  bears  marks  of  extrinsic 
dictation;  no  clause  has  been  inserted  because  of  Federal 
coercion.  With  few  exceptions  the  State  enjoys  all  ele- 
ments of  sovereignty.  It  may  not  declare  war,  nor  maintain 
ambassadors  or  consuls  in  foreign  capitals;  nor  conclude  a 
treaty  of  peace  or  an  alliance  with  any  foreign  power.  It 
has,  however,  its  own  militia,  which  may  be  summoned  to 
quell  disorder;  it  creates  its  own  government,  and  may 
make  any  constitution  whatsoever,  provided  that  the  con- 
stitution be  republican  in  form. 

No  one  can  study  the  constitution  and  laws  of  the  State 
without  perceiving  the  almost  illimitable  sphere  of  State 
activities.  The  danger  is,  not  that  the  State  cannot  do 
enough,  but  that  it  may  attempt  too  much,  thus  transcending 


STATE   OF    NEW   YORK.  387 

the  limits  of  government.  As  Professor  Jameson  has 
acutely  observed,  nearly  all  the  important  questions  which 
have  agitated  England  during  the  last  century  would,  had 
they  arisen  in  America,  have  fallen  within  the  domain  of 
State  legislation.  The  fear,  old  as  the  Union,  that  the  cen- 
tral power  may  usurp  State  functions  is  unfounded.  The 
lines  of  State  and  Federal  action  are  substantially  unaltered ; 
even  the  Civil  War  never  seriously  threatened  the  equilib- 
rium. By  the  national  constitution  interstate  and  foreign 
commerce  are  placed  in  control  of  Congress,  but  the  marvel- 
ous development  of  commerce  and  the  implications  within 
the  grant  of  power  to  Congress  could  not  have  been  fore- 
seen by  the  framers  of  that  instrument.  Nor,  on  the  other 
hand,  could  the  early  patriots  have  dreamed  of  the  limitless 
field  of  State  activities.  The  modern  functions  of  city  gov- 
ernment alone  cover  a  range  of  business  hard  to  conceive 
in  its  totality  and  the  sphere  of  city  activities  keeps  steadily 
enlarging.  The  city  and  the  State  are  more  likely  than  the 
nation  to  threaten  individualism  or  absorb  the  enterprises 
of  society. 

The  chief  menace  to  the  State  might  seem  to  come  from 
the  Federal  judiciary.  This  is  more  fancied  than  real. 
Federal  judges  not  only  habitually  regard  constitutional 
boundaries  in  their  decisions,  but  are  themselves  citizens 
of  the  respective  States.  No  State  could  be  oppressed  by 
Congress  without  the  consent  of  other  States.  Congress 
can  enact  no  law  infringing  State  rights  without  the  consent 
of  the  States  themselves,  for  it  consists  of  representatives 
from  States.  The  danger  of  encroachment  is  minimized 
because  the  people  of  the  States,  mediately  or  immediately, 
elect  the  president  and  the  members  of  both  houses  of 
Congress,  and  appointments  of  Federal  judges  may  be  said 
to  emanate  from  them.  Were  the  sources  of  Federal  au- 
thority foreign  or  extrinsic,  dangerous  consequences  might 
be  feared,  but  no  outside  potentate  or  sovereignty  imposes, 
enforces  or  interprets  Federal  powers,    Federal  officeholders 


388  CONSTITUTIONAL   HISTORY 

come  from,  and  upon  retirement  return  to,  the  citizenship 
of  the  States;  in  fact,  during  all  their  official  life  they  re- 
main citizens  of  their  respective  commonwealths.  There 
is  no  analogy  to  the  prefecture  or  proconsulate  in  the  rela- 
tion of  the  States  to  the  Federal  government,  and  the  power 
of  amending  the  national  constitution  rests  exclusively  with 
the  States  themselves  and  the  people.  The  government  con- 
sists still,  as  ever,  of  an  indissoluble  union  of  indestructible 
States.  As  has  eloquently  been  said  by  a  great  historian, 
the  nation,  like  Milton's  angels,  "vital  in  every  part,  cannot 
but  by  annihilating  die."  ^ 

It  is  for  the  men  of  today  to  give  such  interpretation 
to  the  idea  of  the  State  that  it  shall  retain  its  rightful  do- 
main in  the  field  of  public  life.  The  mental  vision  which 
perceives  the  almost  illimitable  horizon  of  the  State  has 
neither  jealousy  nor  fear  of  national  power.  Let  the  citi- 
zenship of  the  State  set  exalted  standards  for  public  serv- 
ants, State  and  local ;  send  to  the  national  senate  and  house 
neither  placemen  *'all  servility  and  smiles,"  nor  tools  of 
special  interests,  but  representatives  of  that  genuine  man- 
hood which  still  persists  if  there  be  any  virtue  in  the  com- 
monwealth, and  there  will  be  no  occasion  to  fear  central 
usurpation.  If  the  State  is  ever  undermined  it  will  be  the 
fault  of  its  own  citizenship.  Had  membership  in  important 
State  and  local  boards,  which  in  the  past  has  too  often  been 
determined  by  petty  politics,  been  decided  by  large  consid- 
erations of  public  interest,  history  would  have  been  revolu- 
tionized. Vast  opportunities  for  distinguished  service  have 
been  open,  but  often  have  been  abused.  In  the  laws  and 
constitutions  of  the  State,  future  historians  will  find  proof 
that  official  corruption,  betrayal  of  public  trusts,  exploita- 
tion of  the  people,  are  almost  inveterate  vices,  and,  para- 
phrasing the  language  of  Jugurtha,  may  be  tempted  to  ex- 
claim that  everything  was  venal  in  New  York.    We  need  a 


"The  Nation,"  by  Alexander  Johnston,  2  Lalor's  Cyclopaedia,  936. 


STATE   OF   NEW   YORK  389 

quickened  conscience  in  the  selection  of  officials.  They 
especially  need  it  in  the  discharge  of  their  duties.  With 
the  ancient  Romans  patriotism  was  a  religion ;  it  ought  to  be 
so  with  us.  There  is  hardly  a  baser  form  of  turpitude  than 
pillage  of  the  public  treasury  committed  or  weakly  allowed 
by  an  official  whom  a  confiding  public  has  honored  with 
place.  Yet  looting  occurs  under  Protean  forms.  It  is  a 
species  of  treason  against  the  State  and  public  opinion  may 
some  day  demand  that  it  be  treated  as  such. 

To  emphasize  the  importance  of  the  State  is  not  scho- 
lastic in  an  age  when  a  new  nationalism  is  inculcated.  The 
State  is  the  home  of  the  individual.  Its  institutions,  laws 
and  customs  environ  his  life  and  may  surround  him  with 
an  atmosphere  of  opportunity  or  discourage  all  aspiration. 
It  is  the  originator  and  controller  of  the  innumerable  cor- 
porate phases  of  modern  business,  so  far  as  business  is 
transacted  within  the  State.  It  must  devise  and  enforce 
rules  to  prevent  these  artificial  creatures  from  dominating 
society  with  an  imperial  sway  hardly  enjoyed  by  past  kings 
and  rulers,  and  from  rearing  a  genuine  economic  servitude 
upon  conventional  political  freedom.  It  must  restrain  these 
vast  and  generally  beneficent  aggregations  from  becoming 
possible  enemies  or  masters  of  the  people.  It  must  revise 
and  re-examine  the  whole  law  in  relation  to  grants  of 
privileges  and  the  people  must  understand,  as  Burke  de- 
clared, that  there  is  a  public  as  well  as  a  private  aspect  to 
every  franchise.  The  primary,  even  the  sole,  object  of  the 
State  in  the  creation  of  a  franchise  is  the  promotion,  not  of 
the  interests  of  individuals,  but  of  the  general  public  wel- 
fare. In  the  last  analysis  the  power  of  government  to  grant 
special  privileges  springs  not  from  any  right  to  confer  a 
benefit  upon  individuals,  for  it  has  no  such  right,  but  from 
expectation  of  advantage  to  the  community.  The  State  has 
nothing  to  fear  from  the  nation  if  it  perform  its  full  duty 
as  a  distinct  governmental  entity.  The  danger  of  abso- 
lutism is  chimerical.    There  is  no  soil  here  for  the  growth 


390  CONSTITUTIONAL   HISTORY 

of  a  Caesar  or  a  Napoleon.  Far  more  imminent  and  far 
more  insidious  is  the  peril  from  accumulated  wealth,  espe- 
cially wealth  fostered  and  increased  by  government  favor- 
itism, the  peril  from  widespread  corruption,  from  debase- 
ment of  the  electorate  by  unrestricted  immigration,  from 
the  gross  materialism  and  low  moral  standards  of  the  age, 
and  the  effect  of  ir religion  upon  natures  deficient  if  not 
altogether  lacking  in  ethical  quality.  There  is  an  incal- 
culable menace  in  the  widespread  disrespect  for  law ;  in  fact 
by  this  disrespect  wealth  has  too  often  been  attained. 

Nothing  is  clearer  than  that  the  future  of  the  State  is 
in  the  keeping  of  all  its  people,  and  not  of  a  class.  That 
was  settled  when  the  States  adopted  manhood  suffrage  early 
in  the  last  century.  Their  wisdom  could  readily  be  justified 
by  a  priori  reasoning ;  it  has  abundantly  been  vindicated  by 
intermediate  history.  Without  manhood  suffrage  this  State 
would  not  have  attained  its  acknowledged  primacy ;  without 
manhood  suffrage  the  nation  would  have  been  stunted  in  its 
growth;  without  it  slavery  extension  could  not  have  been 
arrested.  Without  it  there  would  have  been  no  logical 
substructure  for  Lincoln's  appeals  to  his  audiences  in  the 
debates  with  Douglas.  His  arguments  were  based  upon 
the  proposition  that  no  man  has  a  right  to  say  to  another, 
white  or  colored,  ^'you  earn  the  bread,  but  I  shall  eat  it." 
As  Mill  has  well  said,  "human  beings  are  only  secure  from 
evil  at  the  hands  of  others  in  proportion  as  they  have  the 
power  of  being,  and  are,  self -protecting/'  and  this  they  could 
not  be  without  the  suffrage.  Nor  would  the  successful  con- 
duct of  the  Civil  War  have  been  possible  upon  any  narrow 
electoral  basis.  With  the  enormous  growth  of  private  for- 
tunes in  recent  years  and  the  creation  of  vast  if  not  sinister 
aggregations  of  capital,  manhood  suffrage  might  perhaps 
not  have  come  at  all,  or  might  have  been  long  deferred,  had 
its  adoption  been  postponed.  Voting  power  would,  perhaps, 
have  been  firmly  concentrated  in  few  hands;  its  holders 
might  have  stubbornly  resisted  any  interference  with  their 


STATE   OF   NEW   YORK  391 

privilege  of  exploiting  masses  of  men  for  their  own  benefit. 
The  point  to  be  emphasized  is  that  democracy  has  the  future 
in  its  own  keeping ;  what  the  people  desire  they  will  surely 
obtain.  They  make  and  they  may  unmake  constitutions 
and  substitute  other  instrumentalities  of  government.  Their 
power  is  too  titanic  long  to  withstand  opposition.  The 
great,  the  abiding  need  in  the  interest  of  genuine  progress 
is  that  this  invincible  power  shall  not  be  misused. 

Fears  of  the  rise  of  a  plutocratic  class  are  frequently 
expressed;  nevertheless,  there  are  cogent  reasons  for  be- 
lieving that  a  wealth  caste  will  never  flourish  in  this  re- 
public, although  at  times  the  belief  wavers  as  a  servile  and 
cynical  press  and  almost  all  grades  of  officialdom  are  seen 
to  prostitute  themselves  before  the  money  power — the  only 
power,  as  Hudibras  says,  ''that  all  the  world  bows  down 
before;  money,  that  like  the  sword  of  kings  is  the  last 
reason  of  all  things."  The  chief  antidote  is  the  organized 
public  opinion,  auspiciously  on  the  increase  and  co-extensive 
with  the  republic,  that  exalts  character,  intelligence,  disin- 
terested public  service,  nobility  of  aim  and  purpose  above 
mere  financial  acquisition, — an  opinion  growing  vastly  more 
formidable  as  fortunes  accumulate.  Democracy  has  in  fact 
less  to  fear  from  plutocracy  than  from  itself, — its  own  un- 
wisdom, its  own  low  standards,  even  its  own  virtuous  impa- 
tience with  evils  the  extirpation  of  which  requires  the  ex- 
ercise of  sanity  and  trained  intelligence.  There  are  moods 
in  which  one  almost  despairs  of  democracy.  It  seems  a 
dead  level  of  commonplaces;  its  vulgar  contests  are  unin- 
spiring; its  judgment  is  undiscriminating.  It  lives  in  an 
atmosphere  of  bustle  and  hurry;  it  lacks  poise;  its  manners 
are  plebeian;  it  can  scarcely  distinguish  a  patriot  from  a 
demagogue,  a  Caesar  from  a  Clodius ;  it  bows  down  before 
false  gods,  and  worships  false  creeds.  These  are  only 
moods,  for  the  lesson,  repeatedly  enforced,  is  that  the  peo- 
ple may  be  trusted. 

A  cardinal  error  of  democracy  is  its  tendency  to  seek 


392      ^        CONSTITUTIONAL    HISTORY 

an  instant  cure  for  an  ill,  sacrificing  the  ultimate  to  the  im- 
mediate good,  its  action  militating  against  true  progress. 
There  is  the  same  recuperative  energy  in  the  social  as  in 
the  physical  life  of  man.  Evils  tend  to  disappear  or  cure 
themselves,  but  democracy  is  restless  and  unthinking.  It 
needs  that  proud  and  unconquerable  patience  which  has 
somewhere  been  said  to  be  beloved  by  the  gods.  In  reck- 
less pursuit  of  specific  remedies,  worse  ills  are  often  fos- 
tered. Government  is  thus  made  to  consist  of  a  series  of 
reactions. 

In  a  commonwealth  of  manhood  suffrage  needed  re- 
forms can  never  long  be  resisted.  Let  us  first  be  sure  that 
our  remedies  are  reforms.  To  the  toiling  masses  life  is 
narrow  and  in  emotional  moments  they  sometimes  seem  vic- 
tims rather  than  beneficiaries  of  industrial  progress.  Free- 
dom of  contract  on  the  part  of  the  employed  often  seems 
the  ironic  freedom  to  accept  from  an  employer  the  terms  of 
a  slave.  Sympathy  resents  intolerable  evils  and  injustices 
long  before  reason  discovers  the  cure.  If,  for  example, 
constitutional  obstacles  apparently  blocked  the  passage  of 
laws  to  indemnify  labor  from  the  almost  inevitable  casual- 
ties of  employment,  such  laws  were  bound  to  come;  the 
check  could  be  temporary  only.  Legislation  in  the  interest 
of  humanity  cannot  long  be  resisted,  for  constitutions  will 
yield  sooner  than  human  sentiments. 

The  constitution  assumed  substantially  its  present  char- 
acter under  the  impulse  of  the  democratic  movement  cul- 
minating in  this  State  in  the  convention  of  1821.  The 
modem  industrial  State  had  then  hardly  begun  its  life. 
The  steamship  was  in  its  infancy,  the  railroad  unknown, 
the  telegraph,  the  ocean  cable,  the  telephone,  the  phono- 
graph, the  wireless  current,  unimagined.  Photography  had 
not  been  invented;  modern  chemistry  was  almost  undis- 
covered. The  boundaries  of  the  solar  system  have  since 
immeasurably  widened;  Uranus  was  then  the  most  distant 
planet  of  the  sisterhood,  for  not  until  1846  did  the  com- 


STATE   OF   NEW   YORK  393 

bined  genius  of  Adams  and  of  Leverrier  extend  the  sun's 
family  to  Neptune.  The  spectroscope,  the  latest  revolu- 
tionizer  of  stellar  science,  had  not  been  invented.  The  im- 
mense industrial  advancement  witnessed  during  the  last 
generation  could  not  have  been  dreamed  of.  A  tremendous 
impetus  has  been  given  to  thought  by  the  scientific,  indus- 
trial and  social  evolution  of  the  last  sixty  or  seventy  years. 
It  has  involved  and  will  continue  to  involve  reconsideration 
of  accepted  creeds  and  ideas.  No  doctrine  based  upon 
traditions  however  long  continued  or  valued  will  be  safe 
from  mordant  analysis.  It  would  be  strange  indeed  if  in 
the  general  intellectual  uprising  old  theories  of  political 
economy  and  assumed  axioms  of  jurisprudence  should  es- 
cape rough  handling.  The  false  and  the  mistaken  will  dis- 
appear, the  true  will  emerge  the  stronger  from  the  ordeal. 
The  questions  of  the  future  will  probably  be  economic, 
rather  than  political.  For  their  solution  the  best  and  most 
disciplined  mental  power  will  be  requisite.  In  meeting  new 
problems  study  of  our  constitutional  history  should  be  an 
efficient  aid.  The  crises  of  the  past  have  been  successfully 
confronted.  The  crises  of  the  future  may  be  faced  with 
confidence  by  a  genuine  democracy  with  belief  in  itself  and 
its  institutions. 


INDEX 


Abolition  of  Slavery,  Morris 
urges  in  Convention  of  1777,  54; 
Aaron   Burr  champions,  61. 

Adams,  Charles  Francis,  on  influ- 
ence of  railroads,  280. 

Adams,  Henry,  History  of  United 
States,  quoted,  342. 

Agar,  John  G.,  needed  changes  in 
Constitution  as  to  forest  pre- 
serve,   350    note. 

Age  limit,  fixed  at  60  for  judges, 
in  1777,  54;  continued  in  1821, 
131,  note;  made  70  in  1869,  198. 

Albany  Argus,  Samuel  Young  at- 
tempts to  refute  Kent  in,  88. 

Albany  Atlas,  175. 

Albany  regency,  20. 

Albany  Register,  urges  DeWitt 
Clinton  for  President,  80; 
against  charter  for  Merchants' 
Bank,  119. 

Alexander  De  Alva  Stanwood,  19, 
84;  on  Erie  Canal,  147  note; 
Tammany  opposes  canal,  148. 

Amendment  of  Constitution,  mode 
of,  provided  by  Constitutional 
Convention  of  1821,  116;  by 
that  of  1846,  171,  172. 

Amendment  of  Constitution,  1822, 
144;  1846,  175;  in  1869,  202;  in 
1874,  229,  230,  231,  232,  235,  236, 
238,  239,  240,  241 ;  in  1882,  288, 
329,  note;  in  1899,  356,  357; 
1905,  358;   1909,  358;  1913,  359. 

American  Citizen,  the,  opposes 
charter  to  Merchants'  Bank, 
119. 

Amicus  Juris  Consultus,  88. 

Anderson,  Martin  B.,  appointed 
to  commission  of  1875,  263. 

Andrews,  George  H.,  on  general 
property  tax,  303. 

Andros,  Edmund,  colonial  gov- 
ernor of  New  York,  35 ;  admin- 
istration of,  35. 


Anti-Renters,  158,  176,  178,  179, 
180. 

Appointment,  of  judges.  See 
judges. 

Appropriation  bills,  power  to  veto 
parts  of,  218,  23s;  Governor 
Hoffman  on,  235;  riders  on, 
forbidden,  235. 

Appropriations,  for  school  sys- 
tem, 64. 

Aristides,  nom  de  plume  used  by 
William  P.  Van  Ness  in  de- 
nouncing the  Clintons,  78. 

Articles  of  Capitulation,  between 
the   Dutch   and  English,  34. 

Articles  of  Confederation,  signed 
on    behalf    of    New    York,    58, 

59. 

Assembly,  the,  how  constituted  in 
1777,  50;  in  1821,  III,  112,  113; 
in  1846,  169;  proposals  as  to, 
in  1867,  213;  changes  made  in 
1894,  in,  349. 

Attorney-General,  as  to  appoint- 
ing, 215,  216. 

Attorneys,  required  to  produce 
certificate  of  loyalty,  61. 


B 


Baltimore  &  Ohio  Railroad,  280, 
282. 

Banking  Laws,  act  of  1804,  118. 

Bank  of  Albany,  the,  incorporated 
in  1792,  118.^ 

Bank  of  America,  119. 

Bank  of  Columbia,  at  Hudson, 
incorporated,   118. 

Bank  of  New  York,  the,  incor- 
porated in  1791,  117. 

Banks,  entry  of,  into  politics,  117; 
scandals,  in  grant  of  charters 
to,  118,  119,  120;  tax  on  stock 
of,  urged,  307. 

Barge  canal,  recommended,  293; 
legislature    provides    for    con- 


395 


396 


INDEX 


struction  of,  294;  submission  of 
act  to  people,  294. 

Barnard,  D.  D.,  on  Chief  Justice 
Spencer,  335,  note.  _ 

Barnburners,  the,  policy  of,  as  to 
canals,  154. 

Bartlett,  Willard,  in  Sulzer  im- 
peachment, 373,  374. 

Beardsley,  Samuel,  133,  216. 

Bellomont,  Lord,  on  inordinate 
grants  of  land  by  English  gov- 
ernors, 177;  see  also  183. 

Benson,  Egbert,  attorney-general, 
56;  urged  for  supreme  court, 
70. 

Bill  of  Rights,  in  constitution  of 
1822,  138;  addition  to,  at  in- 
stance of  Anti-renters,  in  1847, 
176;  addition  to,  by  convention 
of  1894,  349- 

Birney,  James  G.,  and  vote  of 
Liberty  party  in  1844,  155. 

Black,  Frank  S.,  appoints  special 
commission  to  inquire  into 
causes  of  decline  in  commerce 
of  Nevv  York,  291  and  note. 

Black  river  canal,  authorized, 
152;  for  completion  of,  156; 
made  inalienable,  236,  237. 

Bouck,  William  C,  governor,  300. 

Boundary  disputes,  between  New 
York  and  Massachusetts,  33, 
176;  with  Connecticut,  33;  be- 
tween New  York  and  New  Jer- 
sey, 34;  treaty  between,  142, 
143;  between  New  York  and 
Vermont,  60,  61. 

Bounties,  during  Civil  War,  317, 
318. 

Bribery,  charged  in  chartering 
Albany  State  Bank,  118;  Bank 
of  America,  119;  law  of  1853, 
as  to,  243,  note;  discussion 
upon  constitutional  provision  as 
tOj  in  convention  of  1867,  241, 
242,  and  note;  article  upon, 
drafted  by  commission  of  1872, 
242. 

Bronson,  Greene  C,  133,  190. 

Brooks,  Erastus,  192,  234. 

Brown,  Justice  John  W.,  in  con- 
vention of  1846,  180;  opinion  in 
People  V.  Draper,  255. 

Bryce,  James,  on  report  of  Tilden 


commission,     264;     on     advan- 
tages   of    federal    judicial    sys- 
tem, 338. 
Bucktails,  82,  83,  92,  96,  148. 
Burgomaster,  office  of,  I35- 
Burke,  Edmund,  198,  367,  389- 
Burr,    Aaron,    on    abolition,    61 ; 
offered    judgeship    of    supreme 
court  of  state,  69;  president  of 
convention    of    1801,    76;    pro- 
scription  of,   and  of   followers 
of,  77,  78;  plans  incorporation 
of     Manhattan    Co.,     117;     his 
biographer    Matthew   L.    Davis, 
177,  note;  land  sales,  177. 
Butler,  Benjamin  F.,  one  of  statu- 
tory    revisers,     139,     141,     and 
note;   commissioner   in   settling 
boundary     dispute     with     New 
Jersey,   I43- 
Butler,  William  Allen,  131,  note; 
141,  note. 


Canals,  influence  of,  upon  State 
history,  21 ;  unifying  force 
of,  146;  factor  in  State  poli- 
tics, 149;  construction  of  va- 
rious, provided  for,  150;  fluc- 
tuations in  policy  as  to,  152, 
155 ;  views  upon,  lead  to  con- 
vention of  1846,  158;  advocates 
and  opponents  of  enlargement 
and  completion  of,  164;  provi- 
sions of  constitution  of  1847  in 
relation  to,  and  to  public  debts, 
165,  166;  change  in  policy  in 
1851,  174;  constitutional  amend- 
ment as  to,  in  1854,  175;  ex- 
pected revenues  from,  279,  and 
note;  tolls  abolished,  288;  im- 
portance of  freedom  of,  288, 
289;  carry  freight  at  minimum 
rates,  291 ;  recent  improvements 
in,  292-294;  see  Erie  Canal; 
Barge  Canal. 

Carter,  James  C,  member  of  Til- 
den Cities  Commission,  263. 

Cassidy,  William,  editor  of  Al- 
bany Argus,  228,  229. 

Central  Railroad  of  New  Jersey 
V.  The  Mayor,  143. 


INDEX 


397 


Chancery  courts,  ceased,  as  sepa- 
rate courts,  in  1847,  170. 

Charles  II,  of  England,  34- 

Charter  of  Freedoms  and  Ex- 
emptions, granting  of,  30. 

Charter  of  Liberties  and  Privi- 
leges, promulgated  in  1683,  36; 
vetoed  by  James  II,  37- 

Chase,  Emory,  373,  374. 

Cheetham,  James,  editor  of 
American  Citizen,  119. 

Chemical  Bank,  applies  for  char- 
ter,  167,  note. 

Chisholm  v.  Georgia,  cited,  76, 
note. 

Choate,  Joseph  H.,  opposes 
changes  in  Bill  of  Rights,  in 
1894,  24;  president  of  conven- 
tion of  1894,  347;  address  to 
delegates,  348,  379- 

Church,  Sanford  E.,  delegate  to 
convention  of  1867,  I93;  elected 
chief  judge  of  court  of  ap- 
peals, 202. 

Cities,  debts  of,  240,  264,  269; 
general  laws  for  incorporation 
of,  260,  268,  273;  principles  of 
government  of,  276;  provisions 
as  to,  in  constitution  of  1894, 
271,  272;  recent  enactments,  as 
to,  275,  276;  see  Municipal  Cor- 
porations. 

Civil  Service,  348,  and  note. 

Clark,  Judge  Walter,  338,  note. 

Clay,  Henry,  48. 

Clermont,  the,  aided  canal  de- 
velopment,  146. 

Clinton,  DeWitt,  becorning  domi- 
nant factor  in  politics  of  the 
state,  73;  crushing  of  Burr  by, 
77;  brings  about  removals  of 
office-holders  in  New  York 
City,  78;  becomes  mayor,  79; 
removed,  79;  becomes  arbiter 
of  politics  in  New  York  State, 
80;  and  again  mayor  of  New 
York  City,  80 ;  alliance  with 
Ambrose  Spencer  broken,  81 ; 
political  fortunes  at  low  ebb, 
81 ;  re-elected  governor,  81 ; 
Van  Buren  hostile  to,  82,  83; 
Tammany  dissatisfaction  with 
use  of  patronage  by,  91 ;  oppo- 
sition  to  a   constitutional   con- 


vention, 91,  92,  93,  96;  opposes 
charter  to  Merchants'  Bank, 
119,  120;  seeks  nomination  for 
the  presidency,  121 ;  aspirations 
defeated,  146;  chairman  of 
commission  for  construction  of 
Erie  Canal,  147;  advocates  con- 
struction, 148;  removal  from 
office,  148;  renominated  and  re- 
elected governor,  149,  and  note, 
212. 

Clinton,  George,  63,  68,  70,  71, 
128. 

Clintonians  and  Bucktails,  82,  83. 

Clyde,  George  C,  in  convention 
of  1846,  on  wrongs  done  to 
feudal  tenants,  178,  180. 

Collin,  Frederick,  373.  . 

Colonial  Laws  of  New  York, 
made  part  of  common  law  of 
State,  54,  63. 

Commission  on  City  Government, 
appointed  by  Governor  Tilden, 
May,  187s,  263. 

Committee  of  Seventy,  New  York 
City,  229,  257. 

Comstock,  George  F.,  member  of 
Convention  of  1867,  193,  194, 
221,  243,  note. 

Confederation,  Articles  of,  58,  59. 

Congress,  Fourth  Provincial,  of 
New  York,  or  First  Constitu- 
tional Convention,  47. 

Congress,  Continental,  1774,  44; 
1775,  45,  46. 

Congress,  Stamp  Act,  44. 

Conkling,  Roscoe,  288. 

Connecticut,  Boundary  dispute 
with  New  York,  33. 

Connecticut  Charter,  37. 

Constitutional  Commission  of 
1872,  appointed  by  Governor 
Hoffman,  228,  229;  work  of, 
229-245. 

Constitutional  Convention,  of 
^777,  47-56;  of  1801,  76;  of 
182T,  100-116,  122-129;  oT  1846, 
162-174,  178-180;  of  1867,  192- 
204,  205-223;  of  1894,  328-332, 
347-355 ;  of  IQ15,  379.  See  dele- 
gates; submission  of  work  of 
convention. 

Convention,  Federal,  assembled 
May,  1787,  62, 


398 


INDEX 


Cooley,  Thomas  M.,  on  freedom 
of  canals,  288;  on  early  Amer- 
ican cities,  247,  248;  on  local 
self-government,  276. 

Cooper,  Edward,  member  of 
Tilden  Cities  Commission, 
263. 

Corporations,  sole  provision  as  to, 
in  constitution  of  1822,  116; 
State  forbidden  to  aid,  165; 
Wheaton  urges  general  laws  to 
govern  formation  of,  166;  spe- 
cial charters  to,  168,  213,  note; 
taxation  of,  307,  308,  313. 

Council  of  Appointment,  creation 
of,  48,  52,  53 ;  Hammond  on, 
66;  Hamilton  on,  68;  its  star- 
chamber  power,  69;  power 
claimed  by,  to  nominate,  6g; 
and  controversies  between  gov- 
ernor and  other  members  of, 
70,  71,  72,  73,  74;  Governor  Jay 
dissolves  council  of  1801,  74; 
powers  of,  as  construed  by  con- 
vention of  1801,  76;  evil  effects 
of  this  construction,  78-84; 
abolished  by  convention  of 
1821,  85,  102,  103;  a  political 
guillotine,   185. 

Council  of  Revision,  suggested  by 
Robert  R.  Livingston,  48,  52 ; 
opposition  to  legislative  meas- 
ures, 86,  87;  its  vetoes,  88-95; 
Convention  of  1821  votes  its 
abolition,  105 ;  acts  of,  criticised 
and  defended  in  convention  of 
1821,  106,  107,  108;  leads  to 
downfall  of  first  supreme  court, 
125-129. 

Council  of  Safety,  appointed  by 
convention  of  1777,  56;  pro- 
ceedings of,  ratified  by  legisla- 
ture in  1778,  57. 

Court  for  the  Trial  of  Impeach- 
ment and  Correction  of  Errors, 
53,   170,   189. 

Court  of  Appeals,  as  created  by 
constitution  of  1847,  170;  by 
judiciary  article  ratified  in  1869, 
193,  194;  number  of  judges  sit- 
ting in,  from  1847  to  1870,  323; 
organization  of  second  division 
of.  324,  note;  sentiment  against 
enlargement   of,   324;    jurisdic- 


tion of,  under  constitution  of 
1894,  329. 

Court  of  Burgomasters  and 
Schepens,  135,  136. 

Court  of  Claims,  proposal  in  1867 
to  make  a  constitutional  body, 
333,   334- 

Court  of  Common  Pleas  for  the 
City  and  County  of  New  York, 
origin  of,  138;  account  of,  138. 

Courts,  treatment  of,  in  conven- 
tion of  1821,  123-129;  in  1846, 
170,  171,  189;  in  1867,  193-202; 
in  1894,  329-332;  give  vivid 
idea  of  society,  335;  po-^ers  of, 
over  statutes,  336,  337;  function 
of,  339;  criticisms  of,  339,  340; 
attempts  to  undermine  inde- 
pendence of  (U.  S.),  341,  342. 
See  Supreme,  Surrogates', 
Court,  etc. 

Criminal  Libel,  English  law  of, 
becomes  State  law,  115;  State 
statute  as  to,  enacted  in  1805, 
IIS. 

Croswell,  Edwin,  Editor  of  Al- 
bany Argus,  T15. 

Cuddeback,  William  H.,  373. 

Cullen,  Edgar  M.,  370,  373. 

Curtis,  George  William,  on 
woman  suffrage,  209. 


Daly,  Charles  P.,  39,  note;  186; 
192,  note;  193;  196. 

Danforth,  George  P.,  325. 

Davis,  Matthew  L.,  177. 

Declaration  of  Paris,  88,  note. 

Delegates,  to  convention  of  182 1, 
election  of,  96,  97;  to  conven- 
tion of  1846,  election  of,  159, 
160;  in  1867,  192;  controversy 
over  election  of  in  1886-1893, 
325,  328,  345-347;  election  of, 
m  1914,  379. 

Demo,  Hiram,  255. 

Deserters,  bill  to  aid  in  arrest  of, 
during  War  of  1812,  vetoed,  88, 
89. 

Dimock,  Henry  F.,  member  of 
Tilden  Cities   Commission,  263. 

Direct  taxes,  297,  306,  316. 


INDEX 


399 


Discovery,  title  by,  27. 

Disraeli,  Benjamin,  382. 

Dix,  John  A.,  300. 

Dongan  Charter,  provisions  of, 
249- 

Dongan,  Thomas,  becomes  gov- 
ernor of  Colony  of  New  York, 

Duane,  James,  48. 

Duer,  John,  in  convention  of  1821, 
loi,  128;  in  New  York  City 
convention  of  1829,  250;  judge 
of  superior  court.  New  York 
City,  134. 

Duganne's  amendment,  for  ap- 
pointment of  attorney-general, 
215. 

Duke's  Laws,  adopted  in  colony 
in  i66s,  35. 

Dutch  West  India  Company, 
charter  of,  28. 

Dwight,  Theodore  W.,  member  of 
convention  of  1867,  193;  on  ju- 
diciary committee  of,  193;  ex- 
plains reasons  for  bi-cameral 
legislature,  212;  favors  ap- 
pointment of  attorney-general, 
216. 


Edwards,  Ogden,  member  of  con- 
vention of  1821,  loi,  105. 

Election  of  Judges.     See  judges. 

Eleventh  amendment  (U.  S.),  76, 
note. 

Erie  Canal,  145,  146,  147,  148,  149, 
ISO,  151,  154,  156,  174,  237,  279, 
288,  289,  290,  292,  293. 

Evarts,  William  M.,  in  conven- 
tion of  1867,  193 ;  discussion  by, 
of  judicial  tenure,  198,  199,  200; 
member  of  Tilden  Commission, 
263 ;  favors  free  canals,  288. 

Evening  Post,  the,  approves  prin- 
ciples of  the  Loco-Foco  party, 
167. 

Excise,  State  Department  of,  310. 

"  Expansion  of  New  England," 
23,  note. 


Fairlie,    Professor    John    A.,    on 
powers  of  majors,  269. 


Fassett  Committee,  quotation 
from  report  of,  304,  note. 

Fenton,  Governor  Reuben  E.,  on 
decision  to  hold  convention  at 
fall  election  of   1867,  207,  345, 

347. 

Flagg,  Azariah  C,  153,  note. 

Flower,  Governor  Roswell  P., 
holds  office  for  three  years, 
236;  favors  legislation  so  that 
constitutional  convention  may 
assemble,  345. 

Folger,  Charles  J.,  member  of 
convention  of  1867,  193;  on  ju- 
diciary committee,  193 ;  be- 
comes member  of  court  of  ap- 
peals, 203 ;  references  to  San- 
ford  E.  Church,  204;  defeated 
for  governorship,  204;  author 
of  convention's  address  to  the 
people,  220. 

Ford,  John,  special  franchise  tax, 

314. 
Forest    Preserve,   provisions    for, 

in  constitution  of  1894,  350,  and 

note,  353. 
Fox,  Charles  James,  48,  115,  209. 
Fowler,    Robert   Ludlow,    19,    50, 

note,  310,  note. 
Franchise  taxes,  on  corporations, 

307,  308;   special  franchise  tax 

on  public  utility,  3i3-3iS- 
Fulton,  Robert,  147. 


Garfield,  James  A.,  on  extent  of 
grants  of  lands  to  railroads, 
281. 

Gitterman,  Professor  J.  M.,  ar- 
ticle in  Political  Science  Quar- 
terly on  council  of  appointment 
66,  and  67,  note. 

Godkin,  Edwin  L.,  member  Til- 
den Cities  Commission,  263. 

Goodrich,  Milo,  member  judiciary 
committee  (convention  of 
1867),  193;  minority  report,  by, 

193- 
Governor,  office  of,  under  consti- 
tution of   1777,  51 ;   changes  in 
1822,    III;    reduction   in   length 
of  term  in  1894  to  two  years, 


400 


INDEX 


235;  power  over  thirty-day 
bills,  235;  veto  of  items  of  ap- 
propriation bills  by,  235;  length 
of  term  of,  extended  in  1874, 
235,  236. 

Governor's  Cabinet,  proposed,  215 
and  note,  226,  236. 

Greeley,  Horace,  member  of  con- 
vention of  1867,  192;  chairman 
committee  on  suffrage,  207; 
presents  committee's  report, 
207. 

Griswold  v.  Haddington,  opinion 
of  Chief  Justice  Spencer,  335, 
note. 

Grotius,  27. 

Grover,  Martin  J.,  member  of 
court  of  appeals,  204. 


H 


Hadley,  Arthur  T.,  350,  note. 

Hale,  Matthew,  member  of  con- 
vention of  1867,  193;  on  judi- 
ciary committee  of,  193 ;  favors 
appointive  judiciary,  195. 

Hallam,  Henry,  on  sting  of  taxa- 
tion, 315. 

Hamilton,  Alexander,  advocates 
ratification  of  federal  constitu- 
tion by  New  York,  62 ;  views  of, 
on  council  of  appointment,  (:^, 
67,  70;  on  law  of  libel,  115  and 
note;  on  taxation,  298;  on  su- 
premacy of  constitution  over 
laws,  340;  on  necessity  for  ju- 
dicial independence,  341. 

Hammond,  Jabez  D.,  his  History 
of  New  York,  a  treasure-house, 
22;  upon  council  of  appoint- 
ment, 66;  on  convention  of 
1801,  77',  quoted,  79,  80;  mem- 
ber of  council  of  appointment 
in  1818,  81 ;  quotation  from 
History  of  New  York  by,  83, 
84,   85 ;    on   convention   bill    of 

1820,  93;  on  Van  Buren's  work 
in  constitutional  convention   of 

1821,  loi ;  on  special  bank  char- 
ters, 117,  note;  quoted,  121, 
note;  on  Clinton's  removal 
from  canal  commissionership, 
149,  note;  quoted,  168,  note. 


Hand,  Samuel,  member  of  Tilden 
Cities  Commission,  263. 

Harris,  Ira,  member  of  conven- 
tion of  1846,  162 ;  opinion  of,  on 
constitution  of  1846,  173;  mem- 
ber of  convention  of  1867,  210. 

Hasbrouck,  Justice  G.  D.  B,,  371, 

Hawley,  Gideon,  first  superin- 
tendent of  common  schools^  84; 
removal  of,  by  Skinner's  coun- 
cil, 84. 

Hayes,  Isaac  I.,  on  free  canals, 
288;  resolution  to  abolish  canal 
tolls,  288. 

Hendricks,  Thomas  H.,  371,  note. 

Henry,  John  V.,  member  of  con- 
vention of  1801,  77. 

Hepburn,  A.  Barton,  "Artificial 
Waterways  and  their  Develop- 
ment," by,  146,  note;  Chairman 
Assembly  Investigating  Com- 
mittee in  1879,  283;  Commit- 
tee's report,  283,  284,  285,  286, 
287. 

Herrick,   D.   Cady,   370- 

Hlggins,  Governor  Frank  W.,  on 
revenues  of  the  State,  315;  on 
submission  of  constitutional 
amendments,  360. 

Highways,  proposed  State  high- 
way, 151 ;  debt  for  improvement 
of,  authorized,  195 ;  recent  con- 
stitutional amendments  for  im- 
provement of,  320. 

Hill,  David  B.,  term  of,  236;  on 
inheritance  taxes,  309;  disagree- 
ment with  legislature  as  to 
mode  of  electing  delegates  to 
constitutional  convention,  34.=;.  ^ 

Hill,  Henry  W.,  advocates  Erie 
Canal  enlargement  in  conven- 
tion of  1894,  289;  quotations 
from,  151,  note,  152,  note,  279, 
note. 

Hiscock,  Frank  H.,  273- 

Hitchcock,  Henry,  on  appointive 
judiciary,   191. 

Hobart,  John  Sloss,  appointed 
justice  of  supreme  court,  56, 
57;  not  educated  as  a  lawyer, 
132,  note. 

Hoffman,  Governor  John  T.,  re- 
corder,   and    mayor,    of    Nevy 


INDEX 


401 


York  City,  225;  unsuccessful 
candidate  for  governor,  225; 
election  as  governor,  225;  mes- 
sage to  legislature,  225 ;  views 
of,  on  constitutional  changes, 
226,  227;  appoints  commission 
of  1872,  228. 
Hoffman,  Josiah  Ogden,  criti- 
cises council  of  appointment,  70, 

71. 

Hoffman,  Michael,  author  of 
"pay  as  you  go"  act  of  1842, 
154;  policy  of,  to  place  act  in 
constitution,  158;  opinion  by,  of 
constitution  of  1846,  172,  173; 
drafts  address  of  constitutional 
convention  of  1846  to  people, 
173;  Tilden  on,  175. 

Holmes,  Oliver  Wendell,  Justice 
U.  S.  Supreme  Court,  364. 

Home  Rule,  for  cities,  22,  174, 
218-219,  227,  241,  246,  259,  262- 
268,  273-277;  separate  elections, 
for  cities  and  states,  350.  See 
Tilden  Commission;  People  v. 
Draper. 

Hooker,  Thomas  W.,  author  of 
Connecticut    charter    of     1639, 

Hornblower,  William  B.,  member 
of  judiciary  commission  of 
1890,  326,  327,  note. 

House  of  Lords,  as  final  court  of 
appeal  in  Great  Britain,  322. 

Hudibras,  quoted,  391. 

Hughes,  Governor  Charles  E., 
becomes  justice  of  U.^  S.  Su- 
preme Court,  133;  views  of, 
as  to  governor's  cabinet,  215, 
note;  favors  progressive  inher- 
itance tax,  309;  as  to  submis- 
sion of  constitutional  amend- 
ments, 361. 

Hunkers,  the,  a  Democratic  fac- 
tion, favor  canal  improvement, 
155;  oppose  a  constitutional 
convention,  158;  Wright's  de- 
feat ascribed  to,  158. 

Hunt,  Governor  Washington,  fa- 
vors bill  of  1851  to  enlarge 
canals,  174;  on  personal  taxa- 
tion, 300. 

Hutchins,  Waldo,  member  of  con- 
vention of  1867,  193. 


Immigration,  98,  258,  390. 

Impeachment,  of  Governor  Sul- 
zer,  368-375. 

Imprisonment  for  civil  debt,  abol- 
ished, 144,  note. 

Income  taxes,  297,  298,  312. 

Indians,  title  to  lands  from,  2T\ 
sales  of  land  by,  177. 

Ingraham,  Daniel  P.,  justice  of 
supreme  court,  138. 

Ingraham,  George  L.,  presiding 
justice,  appellate  division,  su- 
preme court,  first  department, 
138. 

Inheritance  taxes,  in  New  York, 
308;  federal,  309;  various 
states  adopt,  308,  note. 

Initiative,  the,  384. 

Insurance  companies,  taxation  of, 
307. 

Irving,  John  T.,  138. 

Irving,  Washington,  138. 

Ives  V.  South  Buffalo  Railway 
Co.,  compensation  law,  364. 


Jameson,  John  Franklin,  tend- 
ency of  States  towards  Union, 
44;  on  first  constitution,  49;  on 
convention  of  1846,  160,  note; 
on  constitutional  commissions, 
245. 

Jay,  John,  member  of  convention 
of  1777,  47,  48;  seeks  to  pro- 
hibit negro  slavery,  61 ;  be- 
comes chief  justice  of  State 
supreme  court,  56;  becomes 
governor  of  State,  71 ;  declares 
for  governor's  exclusive  right 
to  nominate,  in  council  of  ap- 
pointment, T>>' 

Jay,  Peter  Augustus,  recorder  in 
New  York  City,  83;  member  of 
convention  of  1821,  102;  against 
disfranchisement  of  colored 
citizens,  112,  169. 

Jefferson,  Thomas,  68,  114,  note, 
115,  341  and  note. 

Johnson,  Andrew,  opposition  to, 
192,  206;  impeachment  of,  Z^T, 
370,  371,  note. 


402 


INDEX 


Johnson,  Reverdy,  370. 

Johnson,  Richard  M.,  offers  in  U. 
S.  senate  proposed  amendment 
limiting  federal  judicial  power, 
342. 

Johnson  v.  M'Intosh,  on  titles 
from  Indians,  27,  note. 

Johnston,  Alexander,  37,  note;  42, 
note;  388,  note. 

Jones  and  Varick,  statutory  re- 
vision of  1789,  63. 

Jordan,  Ambrose  L.,  member  con- 
vention of  1846,  163. 

Judges,  appointed,  53,  183;  by 
governor,  103;  benefit  of  ap- 
pointive system,  132,  133,  134, 
193;  tenure  of  office,  182-186, 
195;  election  of,  187,  188,  190; 
election  a  mistake,  195-106. 

Judicial  age  limit,  discussion  of, 
in  convention  of  1867,  198,  199, 
200.     See  age  limit. 

Judicial  pensions,  as  proposed  in 
copimission  of  1890,  332;  in 
constitution  of   1894,  334. 

Judicial  system,  no  permanency  in, 
182. 

Judiciary  Commission  of  1890, 
origin  of,  325;  report  of,  325; 
views  of,  as  to  court  of  ap- 
peals, 325,  327;  as  to  general 
terms,  326;  as  to  judicial  pen- 
sions, 332. 

Justice,  the  main  policy  of  human 
society,   198. 

Justinian,  140. 


Kent,  James,  retired  from  bench 
at  sixty  years  of  age,  54;  juris- 
prudence moulded  by,  57;  ap- 
pointed to  supreme  court,  79; 
made  chief  justice,  79;  made 
chancellor,  80;  objections,  in 
council  of  revision,  to  bill  for 
fitting  out  privateers  in  1814, 
87,  88;  objections  in  council  to 
convention  bill  of  1820,  93,  94; 
member  of  convention  of  1821, 
loi ;  seeks  to  preserve  senate  as 
representing  landed  interests, 
113;  opinion  of,  in  People  v. 
Croswell,    115;    objection?    in 


council  of  revision  to  bill  in- 
creasing number  of  judges, 
120;  abstains  from  vote  upon 
Tompkins'  amendment  in  con- 
vention of  1821,  127;  views  of, 
as  to  judicial  office,  129,  130, 
131,  note;  recorder  in  New 
York  City,  137;  upon  revision 
of  statutes  by  B.  F.  Butler  and 
others,  141,  142;  constitutional 
prohibition  upon  lotteries,  298. 

Kent  and  Radcliff,  statutory  re- 
vision by,  in  1801,  63. 

Kernan,  Francis,  member  of 
convention  of  1867,  193;  upon 
judiciary  committee,  193;  fa- 
vors appointment  of  attorney- 
general,  215;  member  of  com- 
mission of  1872,  229,  note. 

Kieft,  William,  Director  of  Dutch 
Colony,  31,  32. 

King,  Rufus,  opposes  slavery  in 
Northwest  Territory,  61 ;  re- 
marks on  Western  New  York, 
98;  member  convention  of  1821, 
loi ;  inquiry  of,  in  convention 
of  1787,  as  to  what  is  a  direct 
tax,  297. 

Kingston-upon-HulI,  247. 

Kirkland,  Charles  P.,  member  of 
convention  of  1846,  163. 


U 


Labor,  13,  358,  363  et  seq.;  prison 
labor,  349,  350. 

Land  grants,  enormous  size  of,  at 
trivial  prices,  177. 

Lansing,  John,  Jr.,  80,  131,  note. 

Lewis,  Governor  Morgan,  on  ap- 
propriations for  schools,  64; 
appointed  to  supreme  court,  69; 
governor,  78;  re-election  of,  79; 
proscription  of  Burr's  friends 
by,  79  and  note. 

Lincoln,  Charles  Z.,  reference  to 
History  of  New  York,  etc.,  by, 
19;  on  patroon  system,  30, 
note;  constitution  of  I777.  56, 
57;  on  ten-day  bills,  218,  note; 
judiciary  article  drafted  by  con- 
vention of  1894,  330,  note;  on 
eleption   pf   delegates   to   con- 


INDEX 


403 


vention,  347 ;  on  bi-partisan  rep- 
resentation in  elections,  349. 

Liquor  tax,  310. 

Litigation,  increasing  complexity 
of,  335. 

Livingston,  Edward,  140. 

Livingston,  Peter  R.,  member  of 
convention  of  1821,  102;  argues 
for  power  of  majority  to  pass 
bills  over  governor's  veto,  106. 

Livingston,  Robert  R.,  member  of 
convention  of  1777,  47;  drafts 
provision  for  council  of  revi- 
sion, 48;  becomes  first  chancel- 
lor of  the  State,  56,  57;  unites 
with  DeWitt  Clinton  against 
Burr,  ^T,  approves  bill  incor- 
porating Manhattan  Co.,  117, 
131,  note;  interested  in  success 
of  canals,  147. 

Loco-Foco  party,  formation  and 
principles  of,  167. 

Lott,  John  A.,  member  of  Tilden 
Cities  Commission,  263. 

Lotteries,  public  and  private,  298, 
299;  moneys  raised  by  means 
of,  298,  note. 


M 


Macaulay,  Thomas  Babington,  42. 

Madison,  James,  iio.^ 

Maine,  Sir  Henry,  influence  of 
Roman  law  on  Western  Eu- 
rope, 27  and  note;  doctrine  of 
title  by  discovery  from,  27;  dis- 
believer in  democracy,  113;  es- 
say on  "Popular  Government," 
quoted  from,  338. 

Macomb,  Alexander,  enormous 
sale  of  State  lands  to,  I77- 

Massachusetts,  boundary  dispute 
with  New  York,  -^.^^  176. 

McBain,  Howard  C,  monograph 
on  DeWitt  Clinton,  (^,  85. 

McLaughlin,  Chester  B.,  member 
of  convention  of  1894,  289; 
urges   canal   improvement,  289. 

McMaster,  John  B.,  45,  note;  46, 
note. 

Marcy,  Governor  William  L.,  82, 
84,  note ;  career  upon  bench,  132, 

151. 
Marshall,  John,  335,  note ;  341,  342. 


Marshall,  Louis,  member  of  judi- 
ciary commission  of  1890,  330, 
note;  of  convention  of  1894, 
330,  note;  of  counsel  for  Gov- 
ernor Sulzer  in  impeachment 
trial,  371 ;  member  of  conven- 
tion of  191S,  379. 

Masten,  Joseph  G.,  member  of 
convention  of    1867,    I93- 

Meyer,  Hugo  Richard,  "  Regula- 
tion of  Railway  Rates,"  quoted, 
280,  281. 

Mill,  John  Stuart,  206,  209,  309, 
note,  390. 

Miller,  Nathan  L.,  2)7Z,  375- 

Minority  Representation,  206,  210, 
229. 

Minuit,  Peter,  Director  of  Colony 
of  New  York,  31. 

Missouri  Compromise,  abrogation 
of,  203. 

Monroe,  James,  no. 

Morgan,  Governor  Edwin  D.,  300, 
318. 

Morris,  Gouverneur,  member  of 
convention  of  1777,  47;  repre- 
sents State  in  Congress,  58. 

Morton,  Governor  Levi  P.,  310. 

Municipal  corporations,  22,  168, 
174,  219,  227,  262,  270.  See 
Cities,  Home  rule,  Tilden  Com- 
mission. 

Municipal  indebtedness,  239,  240. 

Munro,  Peter  Jay,  member  of 
convention  of  1821,  123 ;  chair- 
man of  judiciary  committee, 
123,  124. 

Murphy,  Henry  C,  on  work  of 
coiivention  of  1846,  170,  174. 


N 


Negro  suffrage,  112,  169,  207,  208, 
223. 

Nelson,  Samuel,  member  of  con- 
vention of  1821,  loi;  on  State 
supreme  court,  132,  and  U.  S. 
Supreme  Courtj  133 ;  in  conven- 
tion of  1846,  163. 

Newell  V.  People,  175,  note. 

New  England,  contributions  to 
people  of  New  York  State,  98. 

New  Hampshire  grants,  60,  61. 

New    Jersey,    boundary    dispute 


404 


INDEX 


with  New  York,  and  treaty  be- 
tween the  States,  142,  143. 

New  Netherland,  conflicting 
claims  to,  33. 

New  York,  cedes  lands  in  west, 
59,  60. 

New  York  Central  &  Hudson 
River  Railroad,  genesis  of, 
280. 

New  York  and  Erie  Railroad 
Company,   151. 

Nicolls,  Colonel  Richard,  34,  63, 
136. 

Nicolls'  Code,  35- 


Oakley,  Thomas  J.,  attorney-gen- 
eral, 83;  removed,  84;  becomes 
chief  judge  of  superior  court 
of  City  of  New  York,  134. 

O'Conor,  Charles,  member  of 
convention  of  1846,  162;  opin- 
ion by,  of  its  work,  173;  views 
of,  as  to  constitution  of  court 
of  appeals,  188;  as  to  old  court 
of  errors,  197. 

Odell.  Governor  Benjamin  B.,  on 
canal  improvement,  293,  294. 

"Old  Hunkers,"  and  defeat  of 
Wright,  158. 

Opdyke,  George,  member  of  con- 
vention of  1867,  192;  views  of, 
as  to  city  government,  218,  219, 
260,  261 ;  member  of  commis- 
sion of  1872,  228. 

Ordway,  Samuel  H.,  on  civil  serv- 
ice, 348,  note. 

Ottendorfer,  Oswald,  member  of 
Tilden  Cities  Commission,  263. 


Parker,  Alton  B.,  372. 

Parliament  (British),  its  lack  of 
authority  over  the  colonies,  41, 
42;  private  or  special  bills  in, 
233,  234. 

Parsons,  Theophilus,  335,  note. 

Patroons,  powers  of,  30;  vast  es- 
tates granted  to,  30. 

Patroons'  courts,  establishment 
of,  30. 


Pay-as-you-go  policy,  in  act  of 
1842,  154. 

Peckham,  Rufus  W.,  opposes  re- 
peal of  Missouri  Compromise, 
203;  judge  of  court  of  appeals, 
203. 

People  V.  Bowen,  opinion  of 
Gierke,  J.,  as  to  governor's 
power  over  bills,  after  adjourn- 
ment of  legislature,  217. 

People  V.  Croswell,  law  of  libel, 
IIS. 

People  V.  Draper,  254. 

People  ex  rel.  Union  Trust  Co. 
V.    Coleman,  313. 

People  ex  rel.  Hatch  v.  Reardon, 
29(5. 

Personalty,  failure  of  attempts  to 
tax,  300;  small  amount  of,  as- 
sessed in  comparison  with  real 
estate,  300,  301. 

Pierce  v.  Delamater,  189,  190. 

Pierrepont,  Edwards,  ipember  of 
convention  of  1867,  193. 

Pinckney,  Charles  C,  on  the  Dec- 
laration of  Independence,  45. 

Pitt,   William,  48,   115. 

Piatt,  Jonas,  opposed  to  conven- 
tion bill  of  1820,  93 ;  member  of 
convention  of  1821,  102;  de- 
fends vetoes  of  council  of  re- 
vision, 108. 

Poughkeepsie,  State  ratifying 
convention,  at,  in  1788,  62. 

Prison  discipline,  reforms  in,  in- 
augurated,  144. 

Prison  labor,  349,  350  .and  note. 

Privateering,  bill  passed  during 
War  of  1812,  vetoed  in  council 
of  revision,  87;  remarks  on,  88; 
effect  of  veto  on  council,  89. 

Progressive  taxation,  309,  310. 

Property,  lack  of  philosophical 
definitions  of,  310,  note;  rela- 
tion of,  and  power  of  taxation, 
309,  310. 

Property  qualifications,  abolished 
for  white  voters  in  1826,  144. 

Property  tax,  general,  futility  of, 
306. 

Proxies,  law  respecting,  284,  285. 

Pruyn,  Robert  H.,  chairman  of 
commission  of  1872,  229. 

Public     improvements,     differing 


INDEX 


405 


Views  as  to  policy  of,  in  nation 
and  State,  149. 
Public  Service  Commissions,  or- 
ganization of,  286,  note;  mode 
of  payment  of  salaries  of  mem- 
bers of,  287,  note. 


Railroad  Commission,  first  estab- 
lished in  1855,  283;  how  rail- 
roads procured  repeal  of  act 
creating,  283;  second  commis- 
sion established  by  act  of  1882, 
and  repeal  of,  286,  note. 

Railroads,  political  influence  of, 
28s. 

Railways,  growth  and  develop- 
ment of,  280,  281 ;  influence  of, 
281 ;  effect  of,  upon  canal  com- 
merce, 282. 

Randolph,  John,  proposes  amend- 
ment to  federal  constitution  in 
March,  1805,  341. 

Rapallo,  Charles  J.,  judge  of 
court  of  appeals,  203;  defeated 
by  Folger,  in  campaign  for 
chief  judgeship,  204;  opinions 
by,  204. 

Real  estate,  different  rates  of  as- 
sessments of,  in  different  coun- 
ties, 300;  percentage  of,  under 
assessment  (in>  New  York  City) 
as  compared  with  personalty, 
305 ;  (throughout  the  State),  306. 

Recall,  the,  384. 

Referendum,  the,  364,  365,  384. 

Religious  freedom,  secured  by 
constitution  of   1777,  55. 

Repudiation  (partial)  of  public 
debts,  in  western  States,  153. 

Roberts,  Comptroller  James,  re- 
port on  discrepant  assessments 
in  various  counties,  300;  advo- 
cates raising  State's  revenue 
from  "indirect  sources,"  300,  and 
note. 

Robinson,  Governor  Lucius,  mem- 
ber of  commission  of  1872,  229; 
governor,  229,  note;  message  of 
1878,  270,  note. 

Rortjan  law,  indebtedness  of 
States  to,  26;  Sir  Henry  Maine 
on,  27. 


Roosevelt,  Governor  Theodore, 
appoints  committee  to  consider 
question  of  canal  enlargement, 
291 ;  advocates  taxation  of  spe- 
cial franchises,  as  real  estate, 
314;  message  on,  314;  views  as 
to  subject  of  workmen's  com- 
pensation, 363. 

Root,  Elihu,  member  of  constitu- 
tional convention  of  1894,  379; 
of  1915,  379- 

Root,  Erastus,  criticisms  of  coun- 
cil of  revision  in  1814,  89; 
member  of  convention  of  1821, 
102;  answers  Kent,  114;  plan 
of,  for  reconstituting  supreme 
court,  124,  125,  127- 

Ruggles,  Charles  H.,  member  of 
convention  of  1846,  162;  chief 
judge  of  court  of  appeals,  162, 
180;  chairman  of  judiciary 
committee  in  convention  of 
1846,  187,  188. 

Ruskin,  John,  296. 


Sanford,  Nathan,  member  of  con- 
vention of  1821,  loi ;  urges 
amendment  to  federal  constitu- 
tion, 342. 

Savage,  John,  84. 

Savigny,  M,,  on  taxation  in  an- 
cient Rome,  302. 

Schell,  Augustus,  member  of  con- 
stitutional convention  of  1872, 
228. 

Schepens,   office  of,   135. 

Schout,  office  of,  135. 

Secured  debts,  tax  on,  312. 

Seligman,  Edwin  R.  A.,  on  taxa- 
tion, 298,  note;  tendencies  in 
modern  taxation,  302,  304,  note ; 
indirect  taxation,  306 ;  on  special 
franchise  tax,  315,  note. 

Senate,  the,  under  constitution  of 
1777,  50,  5^;  of  1822,  113,  114; 
of  1847,  169;  views  regarding, 
in  convention  of  1867,  211,  212, 
213 ;  in  commission  of  1872, 
230;  under  constitution  of  1894, 

354,  355. 
Seward,    Governor    William    H., 


4o6 


INDEX 


encourages  canal  building  and 
canal  improvement,  153;  153, 
note ;  reluctantly  approves 
"pay-as-you-go"  bill,  154; 
views  of,  as  to  act  of  1845,  for 
convention,  159;  not  a  delegate 
to  convention  of  1846,  162. 

Seymour,  Henry  (father  of  Ho- 
ratio Seymour),  one  of  com- 
missioners for  New  York  in 
1833,  in  boundary  dispute  with 
New  Jersey,   143. 

Seymour,  Governor  Horatio, 
speaker  of  assembly,  156;  fa- 
•vors  canal  enlargement,  156; 
message  as  governor,  upon 
State  assumption  of  count}' 
debts  incurred  for  bounties, 
317. 

Seymour  plan,  for  canal  improve- 
ment, 290. 

Skinner,  Roger,  holds  three  offi- 
ces simultaneously,  83. 

Skinner's  Council,  account  of,  by 
Hammond,  83,  84. 

Special  franchise  tax.  See  fran- 
chise tax. 

Spencer,  Ambrose,  prohibitions 
upon  lotteries  not  part  of  con- 
stitution, 23;  styled  the  "po- 
litical chameleon,"  75 ;  alliance 
between  DeWitt  Clinton  and, 
broken,  81;  upon  convention 
bill  of  1820,  91,  93;  member  of 
convention  of  1821,  102;  upon 
duties  of  council  of  revision, 
108;  represents  landed  inter- 
ests in  convention  of  1821,  113; 
opposes  charters  to  certain 
banks,  119;  upon  changes  pro- 
posed in  convention  of  1821  to 
supreme  court,  127,  128;  praise 
of  his  judicial  opinions,  335, 
note. 

Spencer,  John  C,  son  of  Am- 
brose, 139,  174. 

State  governments,  recommenda- 
tions for  fgrmation  of,  come 
from     Continental     Congress, 

45. 
State    officers,    proposals    to    ap- 
point, and  discussion  in  conven- 
tion of  1867,  214,  215 ;  views  of 
Governor  Hoffman,  as  to,  226: 


report  of  commission  of  1872, 
as  to,  236. 

States  General,  commissions  is- 
sued by,  to  governor  of  New 
Netherland,  unpropitious  begin- 
nings for  popular  government, 
28,  29. 

Statutory  revisions,  by  Jones  and 
Varick,  in  1789,  63;  by  Kent 
and  Radcliff^  in  1801,  63;  by 
Van  Ness  and  Woodworth,  in 
1813,  63;  revision  authorized  in 
1825,  139,  140,  141,  142. 

Sterne,  Simon,  on  private  bills, 
234,  note;  member  of  Tilden 
Cities  Commission,  263. 

Stuyvesant,  Peter,  Director  of 
Colony  of  New  Netherland,  32. 

Submission,  of  work  of  conven- 
tion of  1821,  138,  139;  of  that 
of  convention  of  1846,  172;  of 
the  constitution  drafted  in  1867, 
221,  222,  223;  of  amendments 
to  constitution,  351,  note;  of 
constitution  of  1894,  355,  356; 
criticism  of  method  of,  360,  361. 

Suffrage,  early  limited  character 
of,  43;  debates  upon,  in  con- 
vention of  1821,  III,  113,  114; 
colored,  112;  manhood  suffrage, 
except  for  colored  citizens,  es- 
tabHshed  in  1826,  144;  discus- 
sion of,  in  convention  of  1867, 
208,  209,  210.  See  negro; 
woman  suffrage. 

Sulzer,  Governor  William,  re- 
marks upon  impeachment  of, 
367,  368;  articles  of  impeach- 
ment of,  adopted  by  assembly, 
368;  trial  of,  369,  370,  371,  372, 
373>  374;  judgment  of  removal 
of,  375. 

Superior  Court  of  the  City  of 
New  York,  constitution  of, 
134;  proposed  abolition  of,  in 
1890,  325;  abolition  of,  in  1894, 

331. 
Supreme  Court,  under  first  con- 
stitution, 53;  proposed  increase 
of  judges  of,  86,  120;  changes 
in,  recommended  by  the  judi- 
ciary committee  in  1821,  123; 
debates  upon  in  convention,  124, 
125,   126;  radical  program  car- 


INDEX 


407 


ried,  127,  128;  reorganization 
of,  in  1846,  170;  appointment 
of  justices  of,  proposed  in  1867, 
195,  196;  character  of  litigation 
in,  in  early  days,  335;  in  re- 
cent times,  335,  336. 
Surrogates'  Courts,  made  consti- 
tutional courts  in  1846,  189; 
treatment  of,  by  convention  of 
1867,  202;  desirability  of  mer- 
ger of,  in  Supreme  Court,  331. 


Talcott,  Samuel  A.,  84,  note,  216. 

Tallmadge,  James,  member  of 
convention  of  1821,  102;  mem- 
ber of  convention  of  1846,  163. 

Tammany  Hall,  opposes  construc- 
tion of  Erie  Canal,  148. 

Taxation,  early  methods  of,  in 
New  York  State,  299;  of  per- 
sonalty, 3100 ;  of  real  estate, 
300;  later  methods  of,  in  State, 
306-311.    See  also  specific  heads. 

Thompson,  Smith,  chief  justice 
of  supreme  court,  81 ;  becomes 
justice  of  supreme  court  of 
tjnited  States,  93- 

Tiffin,  Edward  (Senator,  U.  S., 
Ohio),  proposes  amendment  to 
federal  constitution,  341. 

Tilden  Commission,  authorized, 
263;  members  of,  263;  report 
of,  264;  Bryce  on,  264;  report 
of,  smothered  in  legislative 
committees,  270. 

Tilden,  Governor  Samuel  J.,  let- 
ter to  Albany  Atlas,  175;  in 
legislature  of  1845,  179;  mem- 
ber of  convention  of  1846,  262; 
of  1867,  262;  message  of,  as 
governor,  in  relation  to  cities, 
263. 

Tompkins,  Governor  Daniel  D., 
member  of  convention  of  1801, 
77;  associate  judge  of  supreme 
court,  79;  becomes  governor, 
79;  arraigns  council  of  revision, 
90;  member  of  convention  of 
182 1,  loi ;  chosen  its  president, 
102 ;  proposes  amendment  to  re- 
port   of    judiciary    committee, 


125,  126,  127;  becomes  vice- 
president  of  United  States,  129. 

Townsend,  Martin  I.,  member  of 
convention  of  1867,  215;  favors 
election  of  attorney-general, 
215;  on  proposed  bribery  ar- 
ticle, 243,  note;  on  draft  riots 
in  New  York  City,  258. 

Townsend  v.  Mayor,  cited,  257, 
note. 

Tracy  John,  president  of  conven- 
tion of  1846,  162. 

Transfer  tax,  on  inheritances, 
308;  on  stocks,  312. 


U 


Ulshoeffer,  Michael,  attempts 
answer  to  Kent's  veto  of  con- 
vention bill,  95;  a  judge  of 
court  of  common  pleas  for  the 
city  and  county  of  New  York, 
138. 

United  States  Supreme  Court, 
New  York's  contributions  to 
bench  of,  133. 


Van  Buren,  John,  son  of  Martin, 
216. 

Van  Buren,  Martin,  surrogate  of 
Columbia  county,  79;  deposed 
81 ;  becomes  attorney-general, 
81 ;  master  spirit  of  anti-Clin- 
tonians,  82 ;  influence  of,  82,  84 
criticisms  of  council  of  revision 
by,  89;  federal  senator,  loi 
member  of  convention  of  1821 
loi;  opinions  of  his  work  in 
convention,  loi ;  remarks  in 
convention  as  to  appointing 
power,  103,  104;  a  moderate  in 
opinions,  105;  objections  of,  to 
council  of  revision,  108;  de- 
fense of  chancellor  and  judges 
of  supreme  court,  by,  126,  127; 
aids  passage  of  law  for  con- 
struction of  Erie  Canal,  147, 
148;  Clinton's  removal  from 
canal  commissionership  not  de- 
vised by,  148. 


4o8 


INDEX 


Van  Cott,  Joshua  M.,  member  of 
convention  of  1867,  193,  195, 
196;  of  commission  of  1872, 
263. 

Van  Ness,  William  P.,  'jj,  78. 

Van  Ness,  William  W.,  93,  185. 

Van  Rensselaer,  Kiliaen,  obtains 
title  to  large  tracts  of  land, 
30. 

Van  Rensselaer,  Stephen,  death 
of,  and  anti-rent  troubles,   178. 

Van  Vechten,  Abraham,  attor- 
ney-general, 80;  deposed,  81; 
member  of  convention  of  1821, 
loi,  105;  represented  landed  in- 
terests,  113. 

Vermont,  controversy  with  New 
York,  60,  61 ;  constitution  of, 
61,  note. 

Veto,  power  of,  council  of  revi- 
sion, 52;  instances  of  use  of, 
86,  87,  88,  89,  90,  91,  92,  93,  94, 
95;  constitution  of  1822  places 
power  in  the  governor,  106; 
debate  in  convention,  106,  107, 
108;  differing  practice  in  dif- 
ferent States,  109,  no;  infre- 
quent use  of,  by  early  presi- 
dents, no;  proposed  enlarge- 
ment of  veto  power  in  conven- 
tion of  1867,  217^  218;  favored 
by  Governor  Hoffman,  227;  ef- 
fected through  constitutional 
commission  of  1872,  235;  thir- 
ty-day bills,  23s;  two-thirds  of 
members  elected  to  each  house 
needed  to  pass  a  bill  over,  235; 
separate  appropriation  items 
and,  235. 

W 

Wade,  Benjamin  F.,  370. 
Walworth,    Reuben    H.,    133   and 

note. 
Washington,  George,  68. 
Webster,    Daniel,    from   reply   to 

Hayne,  59,  note;  opinion  of,  on 

constitution  of  1846,  173,  note; 

on    act   of    1851,    to    anticipate 

canal  revenues,  174. 


Weed,  Thurlow,  opposes  enlarg- 
ing suffrage,  1821,  114,  note;  on 
Stilwell  bill,  144,  note;  on  re- 
moval of  Clinton  as  canal  com- 
missioner, 149,  note;  bank  char- 
ters, 167,  note;  letter  of  Daniel 
Webster  to,  173,  note. 

Werner,  William  E.,  y]2»- 

Wheat,  transportation  of,  281, 
282. 

Wheaton,  Henry,  member  of  con- 
vention of  1 82 1,  1 01,  124,  128, 
129. 

Wheeler,  William  A.,  president  of 
convention  of  1867,  192. 

White,  Horace,  on  taxation,  302. 

White,  Justice  Edward  D.,  on 
progressive  taxes,  310. 

Whitford's  "History  of  the 
Canals,"  quoted,  151,  note;  152, 
note;  153,  note. 

Whitney,  Eli,  invention  of  cot- 
ton gin,  280. 

Wilson,  Woodrow,  16. 

Wolcott,  Oliver,  report  of,  as  sec- 
retary of  the  treasury,  to  Con- 
gress in  1796,  316. 

Woman  suffrage,  13,  207,  208,  209, 
210  and  note,  229,  349. 

Woodworth,  John,  becomes  judge 
of  supreme  court,  132. 

Workmen's  compensation,  363-366. 

Wright,  Governor  Silas,  on  pay- 
as-you-go  act,  154  and  note;  ve- 
toes bill  of  1845,  156;  quotation 
from  veto  message  of,  156,  157; 
vote  for,  in  1844,  157;  defeat  in 
1846,  explained,  158;  anti-rent 
controversy  and,  178,  180. 


Yates,  Governor  Joseph  C,  opin- 
ion of,  on  constitution  of  1822, 

139. 

Yates,  Robert,  becomes  judge  of 
supreme  court,  56,  57;  nomi- 
nated for  governor,  71. 

Young,  Governor  John,  defeats 
Wright,  157;  criticism  of  con- 
stitution of  1847,  by,  383. 


U  DAY  USE 

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